New legal hurdle for video streaming order in RIAA piracy case

Appeals court asks for comments on camera ban in the courtroom, pushing case back

A new legal hurdle has been added to a dispute between the music industry and Boston University doctoral student Joel Tenenbaum over the live Internet streaming of courtroom proceedings in the high-profile music piracy case.

The U.S. Court of Appeals for the First Circuit issued an order on Feb. 20 asking both sides in the case to provide their legal comments on a 1996 ban on the use of cameras in the circuit's courtrooms.

The appeals court has given Tenenbaum and the music labels 20 days from the order to file the comments, or supplementary briefs, on the likely implications of the 1996 resolution on the present case.

In a separate development, a scheduled hearing of the case today in a federal district court in Boston, at which the live streaming was to have occurred, has been pushed back to April 30.

A three-judge panel at the appellate court is currently considering an appeal that was filed in January by the Recording Industry Association of America (RIAA), which asked the court to disallow live Internet streaming of courtroom proceedings in its case against Tenenbaum.

The RIAA's motion was in response to a decision on Jan 14 by U.S. District Court Judge Nancy Gertner that basically authorized the Courtroom View Network to send a live video of a scheduled court hearing in the case to Harvard University's Berkman Center for Internet & Society. The center, in turn, was to have made the video stream available to the public on its Web site.

Charles Nesson, a Harvard University law professor who is representing Tenenbaum in the case had asked Gertner to allow the hearing to be streamed. He had claimed 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 [in the case]."

The RIAA for its part had appealed the decision, calling Gertner's decision "wrong on its face" and "troubling in its application." The trade group said that because the video stream would be distributed by the Berkman Center, which Nesson co-founded, it 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.

The Feb. 20 order does not directly address the RIAA's appeal and will further push back any decision on it. Nesson told Computerworld today that the court's order raises a "very open-ended question" about the legal implications of the 1996 resolution quoted in the order. The six-line resolution mentioned in the order basically affirms the judicial council's decision to bar the taking of photographs and also bans radio and TV coverage of proceedings within the circuit courts.

What the appeals court appears to be asking is whether this is an "effective document" when it comes to this particular case, Nesson said. "What is this document actually? How would you classify this document, is this a recorded order, is it on file somewhere, has it been promulgated?"

What the court appears to be doing is gathering opinions to help it decide whether the resolution effectively abrogates Gertner's ruling or not, Nesson said.

An RIAA representative said in an e-mail that the resolution quoted in the appeals court "provides compelling authority in favor of our position."

The RIAA said additionally that the judicial resolution the First Circuit has asked the parties to comment on confirms the position the recording industry has taken in this dispute. The resolution shows that judges do not have the "unfettered discretion to permit broadcasting whenever the judge wants," the RIAA said.

"The resolution is clear that discretion should only be permitted in the specific instances, such as ceremonial proceedings," the RIAA said.

The RIAA filed its lawsuit against Tenenbaum in August 2007 after months of failed attempts at getting him to settle its copyright infringement claims. The lawsuit basically charged Tenenbaum with illegally downloading and distributing hundreds of songs over peer-to-peer file-sharing networks but named only seven of those songs in its complaint. The statutes used by the RIAA in the case allow for fines in excess of $1 million if Tenenbaum is found guilty of willful copyright infringement.

The case shot into the public spotlight last fall after Nesson announced that he would represent Tenenbaum against the RIAA. Since then, Nesson has filed a counterclaim against the RIAA, calling its entire music piracy campaign an abuse of federal courts and federal processes. He has also challenged the constitutionality of the federal Digital Theft Deterrence and Copyright Damages Improvement Act and the RIAA's attempted use of that law against Tenenbaum.

Gertner's live-streaming ruling related to a hearing on the counterclaims that originally was scheduled to take place in U.S. District Court in Boston on Jan. 22. That hearing, however, was postponed until today, after the RIAA said it would appeal the judge's ruling.

Yesterday's order by Gertner pushes that hearing back to April 30. Gertner's order cited the delays caused by the RIAA's ongoing appeal of the Internet streaming motion, and Nesson's "efforts to broaden the scope of the case via his abuse-of-process counterclaim and constitutional challenge" as reasons for the postponement.

In her order, Gertner also noted that Nesson's challenges on the constitutional issues should have been separated from his complaints about the RIAA's alleged abuse of process. It also indicated that rather than a counterclaim, Nesson's complaints should have been filed as a motion to dismiss the case against Tenenbaum.


Copyright © 2009 IDG Communications, Inc.

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