Music Piracy Case Won't be Webcast

In a victory for the Recording Industry Association of America (RIAA), a federal appeals court in Boston Thursday overturned a ruling by a trial judge that would have allowed some courtroom proceedings in a high-profile music piracy case to be streamed live over the Internet.

In its decision, a three-judge panel at the First Circuit Court of Appeals said that allowing the proposed webcast of a hearing in the case to go forward would have violated a 1996 ban on the use of cameras in the circuit's courtrooms. The panel also said that U.S. District Judge Nancy Gertner had overstepped her authority in granting permission for the live streaming in January.

"In order to determine whether webcasts of civil proceedings are permissible in a federal district court, the logical starting point is the district court's local rules," Circuit Judge Bruce Selya wrote as part of the appeals court's opinion. Those rules clearly forbid the use of any camera or broadcasting device inside courtrooms, Selya said, adding that Gertner's interpretation of the rules was "unprecedented and, in our view, palpably incorrect."

The piracy case involves a 25-year old doctoral student at Boston University named Joel Tenenbaum, who was sued for copyright infringement by the RIAA in August 2007. The trade group claims to have found more than 800 songs stored illegally in a shared folder on Tenenbaum's computer, although the lawsuit only identifies seven of those songs. If found guilty, Tenenbaum could be fined $150,000 per song, which would amount to more than $1 million.

The case is similar to many others pursued by the RIAA over the past few years, before the group said in December that it would stop filing piracy lawsuits. But the suit against Tenenbaum shot into the public spotlight last fall, when Harvard law professor Charles Nesson said that he would defend the college student.

As part of his defense efforts, Nesson asked Gertner to allow a non-evidentiary hearing that was originally scheduled for Jan. 22 to be streamed live over the Web. In an interview in January, Nesson claimed that the streaming could be "very constructive" and that it would allow a broad audience "to see what's at stake and just how out of proportion the [RIAA's] response is to the supposed infraction."

Gertner approved Nesson's motion, noting the keen public interest in the case. Her ruling authorized the Courtroom View Network to provide live coverage of the proceedings to Harvard University's Berkman Center for Internet & Society, which in turn would make the video stream available to the public free of charge.

But the ruling was appealed by the RIAA, which called Gertner's decision "wrong on its face" and "troubling in its application." The trade group said the fact that the video stream would be distributed by the Berkman Center, which Nesson co-founded, was unfair and prejudicial to the music labels involved in the case. Such an arrangement "undermines basic principles of fairness and is flatly inconsistent with the public interest," the RIAA contended in its appeal.

In addition to the issues raised by the RIAA, the appeals panel had to consider the 1996 decision by the local judicial council to bar photography and radio and TV coverage of civil proceedings within the First Circuit courts. In February, the judges asked both sides in the case to file legal briefs on that ban. Meanwhile, the hearing in question was first postponed to February and then to April 30 to give the appeals process time to play out.

Nesson said Thursday that the ruling on the appeal was disappointing but not unexpected. "The judges had shown during the oral arguments that they were still very much rooted in the past in their inability to recognize the difference between the Internet and traditional broadcast media," he said. The 1996 ban, Nesson added, was "a blanket, across-the-board rule made before [use of] the Internet was even contemplated that totally eliminates the discretion of a U.S. trial court judge to run a courtroom."

Nesson also pointed to a concurring opinion written by one of the members of the appeals panel, Circuit Judge Kermit Lipez. Although Lipez said he agreed with the ruling that the streaming request should have been denied, he added that apart from the local rule, there were "no sound policy reasons" for prohibiting the webcast. "This case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome," Lipez wrote, while calling for the ban on cameras to be re-examined.

Kurt Opsahl, an attorney at the Electronic Frontier Foundation, which filed an amicus brief in support of the proposed webcast, also criticized Thursday's decision.

"The public deserves to know what the record companies are doing in their litigation campaign, and there is no better way than seeing for themselves what happens in the courtroom," Opsahl said. But he described the call by Lipez for a re-examination of the camera ban as encouraging.

Cara Duckworth, a spokeswoman for the RIAA, said the trade group was pleased with the decision on the appeal. The trade group looks forward to "focusing on the underlying copyright infringement claims in this case," Duckworth said in a statement sent via e-mail.

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