A U.S. District Court judge in Boston authorized a live Internet video stream of oral arguments in a widely followed file-sharing lawsuit in January 2009, but the plaintiff recording companies seeking to prevent the webcast have appealed the order to the 1st Circuit U.S. Court of Appeals.
The defendant in the suit, Joel Tenenbaum, is a Boston University graduate student who was sued by several record companies in 2004. A Harvard Law School professor, Charles Nesson, agreed to defend Tenenbaum and has filed a counterclaim against the record companies challenging the legality of the music industry’s suits and the constitutionality of some portions of U.S. copyright law.
According to her January 14 order, Capitol Records, Inc. v. Alaujan, Nos. 03cv1161-NG and 07cv1146-NG, 2009 WL 82486 (D. Mass. Jan 14, 2009), U.S. District Judge Nancy Gertner agreed to allow the webcast of a hearing in which oral arguments will be presented on the topic of Nesson’s counterclaim. The hearing was originally scheduled for January 22, but the record companies requested a temporary stay to postpone the hearing while they appealed the webcast authorization to the 1st Circuit.
Gertner granted the stay, and the 1st Circuit has scheduled oral arguments regarding the webcast for April 7. The district court hearing has been moved to April 30, pending the 1st Circuit’s decision.
Tenenbaum is one of many college students sued by the music industry in an attempt to quell illegal music downloads. Many have defaulted or settled their suits for amounts between $3,000 and $10,000, often without legal counsel, Gertner’s January 14 order said.
Nesson has challenged the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act, 17 U.S.C. 504(c), which can impose damages of $150,000 for each violation if the court finds that the infringement was willful.
Nesson said in his counterclaim that the lawsuits are “civil in form but criminal in nature,” and that current copyright law unconstitutionally delegates prosecutorial power to private parties, in violation of the protections guaranteed by the Fifth and Eighth Amendments to the U.S. Constitution.
Nesson filed a motion on Dec. 23, 2008 asking Gertner to authorize the video cameras already installed in courtrooms to be used to capture the proceedings and transmit the material to Harvard’s Berkman Center for Internet & Society to stream it on its Web site. Nesson is the founder of the Berkman Center.
“Net access to this litigation will allow an interested and growingly sophisticated public to understand the RIAA’s education campaign.” Nesson said in his petition. “Surely education is the purpose of the Digital Deterrence Act of 1999, the constitutionality of which we are challenging. How can RIAA object?”
In her January 14 order, Gertner called the webcast “uniquely appropriate” considering its subject matter.
“The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these filesharing lawsuits,” Gertner said. “The Defendants are primarily members of a generation that has grown up with the Internet, who get their news from it, rather than from the traditional forms of public communication, such as newspapers or television.”
Gertner quoted court precedent in holding that “court proceedings [should] be open to the public whenever practicable,” and said that “the public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible.”
In the January 14 order, Gertner dismissed the recording industry’s objections that the webcast could influence potential jurors, calling them “curious,” and stating that the industry’s strategy of using the lawsuits as a deterrent “effectively relies on the publicity resulting from this litigation.”
The record companies filed an appeal and a request for a stay in response to Gertner’s order. The companies argued in their appeal that the order violated the court’s rules, and that streaming the proceedings on the Berkman Center’s Web site, since it was affiliated with the defendant’s counsel, “undermines basic principles of fairness and is flatly inconsistent with the public interest.”
The record companies also said in their petition that they “were concerned that, unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and ... rebroadcast as if it were an accurate transcript.”
The 1st Circuit has asked both parties to submit briefs addressing the legal effect of a 1996 resolution that states the court’s intention, “in response to the urging of the Judicial Conference of the United States at its March 1996 Meeting, to continue to bar the taking of photographs and radio and television coverage of proceedings in the United States district courts within the circuit, except as otherwise provided for ceremonial occasions.”
In a February 19 story in The Chronicle of Higher Education, one of Nesson’s students assisting in the case, Debbie Rosenbaum, said they consider the webcast critical. “We’re going to work really hard to have the st Circuit rule in our favor,” she said. “We believe that this is a really important right.”
The record companies have also vowed to continue the fight. “We are for an open trial in an open courtroom,” Cara Duckworth, a spokesperson for the recording industry, said in the February 19 Chronicle of Higher Education story. “What we are against is the manipulation of the judicial process and using a court of law for legal theater and gamesmanship, which is the clear objective of the other side.”
Tenenbaum is accused of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004. He offered to settle the case for $500, but music companies rejected that, ultimately demanding $12,000.
Nesson counterclaimed on Tenenbaum’s behalf, alleging that “Plaintiffs filed this suit primarily to advance ulterior purposes.” The counterclaim specifically accused the record companies of “Unlawfully sacrificing Defendant to intimidate other Internet users into altering the norms of Internet usage,” and “Unlawfully sacrificing Defendant to intimidate other accused infringers into settling without exercising their constitutional right to have their defenses heard in court. “
In a Nov. 22, 2008 Associated Press story, Nesson said that his goal is to “turn the courts away from allowing themselves to be used like a low-grade collection agency.”
The webcast disagreement is only applicable to Nesson’s counterclaims against the record companies. Other contested areas of the case are proceeding without cameras present.
– Jacob Parsley
Silha Research Assistant