Federal court blocks webcast of music piracy suit

By Jonathan Saltzman, Globe Staff

A federal appeals court panel today blocked a trial judge in Boston from allowing live Internet coverage of an upcoming hearing in a closely watched lawsuit against a Boston University student accused of downloading music illegally.

In a strongly worded opinion, the Court of Appeals for the First Circuit said US District Judge Nancy Gertner had made an "unprecedented" and "palpably incorrect" interpretation of a rule adopted by trial judges in Massachusetts when she agreed to a gavel-to-gavel webcast of an upcoming hearing in the suit.

"We are reluctant to interfere with a district judge's interpretation of a rule of her court, especially one that involves courtroom management," said the opinion written by Judge Bruce M. Selya.

However, the three-member appeals court panel said the 1990 rule, the policy of the US Judicial Conference, and a resolution of the First Circuit Judicial Council all prohibit the planned webcast, which would have been the first in a federal court in Massachusetts.

The appeals court said it recognizes that technology is changing rapidly. But the judges said "this is not a case about free speech writ large" but about "the rule of law."

Gertner had ruled in January that she would allow a key hearing to be webcast in the lawsuit by the Recording Industry Association of America against Joel Tenenbaum, a 25-year-old student seeking a doctorate in physics.

Tenenbaum, who is being defended by a well-known Harvard law professor, Charles R. Nesson, and a team of law students, had wanted the hearing presented on the Internet to show the world how the recording industry treats people it is suing. The hearing is tentatively scheduled for April 30, said the appeals court.

But Daniel J. Cloherty, who represents the recording industry, contended in recent oral arguments that Gertner flouted the rule adopted by federal trial judges in Massachusetts. The rule does not mention the Internet but bans cameras and recording equipment in the trial courts, except for such special events as naturalization ceremonies, he said.

He contended that Nesson and Tenenbaum's supporters might distort the facts of the case in a webcast of the hearing. They say, for example, that Nesson last week misstated the number of songs Tenenbaum downloaded and that hundreds of songs are at issue in the case.

Cara Duckworth, a spokeswoman for the RIAA, said the association was ``pleased with the First Circuit's decision in his matter and [we] now look forward to focusing on the underlying copyright infringement claims in this case.''

Nesson said he will go forward with the hearing, which will deal with several key motions, including the record labels' attempt to dismiss Tenenbaum's counterclaims against them. But Nesson said he will try to appeal today's ruling to the US Supreme Court because the issue goes beyond the suit.

"The idea that a United States federal district court judge doesn't have the discretion to open her courtroom to the public is a tribute to the fear that the O.J. Simpson case set loose amongst the federal judiciary," he said. "It seems very short-sighted."

Most state trial courts across the country, including those in Massachusetts, allow television cameras and recording equipment. But most federal judges have forbidden the practice in trial courts, particularly in the wake of the televised spectacle of the Simpson trial in a California state court in 1995.

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