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RIAA gets a chance to overturn video streaming order in music piracy case

Appeals court agrees to hear trade group's motion seeking to bar live streaming of hearing

January 22, 2009 12:00 PM ET

Computerworld - A federal appeals court in Boston has agreed to hear a motion filed by the Recording Industry Association of America (RIAA) that seeks to prevent courtroom proceedings in a music piracy case from being streamed live on the Internet.

In an order issued Wednesday, a three-judge panel at the First Circuit Court of Appeals noted the public interest in the piracy case and the "substantial and novel questions" raised by the prospect of live streaming. The judges called on both the RIAA and the defense to submit legal arguments on the streaming issue in an expedited fashion. The court will then decide if any oral arguments are needed to "facilitate the decisional process," the order noted.

The RIAA is asking the appeals court to overturn a Jan. 14 ruling by U.S. District Judge Nancy Gertner that authorized live video streaming of an upcoming hearing in the piracy case, which involves several music labels and a 25-year old Boston University doctoral student named Joel Tenenbaum.

Tenenbaum is accused by the RIAA of illegally downloading and distributing hundreds of songs over a peer-to-peer network, although the trade group's lawsuit lists only seven of the songs. The lawsuit was filed in August 2007, but it shot into the public limelight last fall, when Harvard University law professor Charles Nesson began representing Tenenbaum in the case.

In October, Nesson filed a counterclaim challenging both the constitutionality of the federal Digital Theft Deterrence and Copyright Damages Improvement Act and the RIAA's attempted use of that law against Tenenbaum. Nesson also challenged the appropriateness of the massive fines — ranging from $750 to $150,000 per willful infringement — that are available to the music labels under the statute.

Gertner's live-streaming ruling related to a hearing on the counterclaim that originally was scheduled for Thursday in U.S. District Court in Boston. However, the hearing was postponed until Feb. 24 after the RIAA said that it planned to appeal the judge's ruling, which authorized the Courtroom View Network to send a live video of the proceedings to Harvard University's Berkman Center for Internet & Society. The center, in turn, would make the video stream available to the public on its Web site.

Nesson asked Gertner to allow the hearing to be streamed, claiming it would allow a broader Internet audience "to see what's at stake and just how out of proportion the [RIAA's] response is to the supposed infraction."

But in its appeal of the streaming order, the RIAA 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. Such an arrangement "undermines basic principles of fairness and is flatly inconsistent with the public interest," the RIAA said in its motion to the appeals court.



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