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Lawyer argues for live coverage in music downloading case

April 8, 2009 12:58 PM

By Jonathan Saltzman, Globe Staff

A Harvard Law School professor who is defending a Boston University graduate student accused of downloading music illegally urged a federal appeals court today to allow live Internet coverage of a hearing in the lawsuit, something that has never happened in a federal trial court in Massachusetts.

Charles R. Nesson told a three-member panel of the US Court of Appeals for the First Circuit in Boston that a webcast of an upcoming hearing in the Recording Industry Association of America's suit against Joel Tenenbaum would be "an opportunity for the world to see what the recording industry is doing to him."

But Daniel J. Cloherty, who represents the recording industry, said District Court Judge Nancy Gertner flouted a rule adopted by all the Massachusetts district court judges when she approved a motion by Tenenbaum to allow Internet access to the hearing. The 1990 rule does not mention the Internet but bans cameras and recording equipment in the trial courts, except for special matters like naturalization ceremonies, he said.

"The district court's ruling in this case is incorrect for a variety of reasons," said Cloherty, who has asked the court to block the webcast.

It was hard to gauge, based on the questions posed by the judges, which way the appeals court panel is leaning. At one point, Judge Kermit V. Lipez told Nesson that the 70-year-old professor had made a "powerful, eloquent argument" about why the local rule banning cameras and recording equipment should be changed but not necessarily about how it should be read.

Unlike most state trial courts throughout the country, including those in Massachusetts, the US district courts have traditionally banned cameras and recording equipment because many judges feared such coverage would undermine the rights of citizens to a fair trial.

Since at least 1996, however, several federal judges in the Eastern and Southern districts of New York, following local rules, have allowed some hearings in civil cases to be recorded and broadcast on television, Gertner noted in her Jan. 14 ruling.

Recently, some judges in those courts have allowed Courtroom View Network to "narrowcast" proceedings on the Internet, but viewers, typically the lawyers and litigants, could only watch after paying a subscription fee, according to Nesson.

If the appeals court does not overrule her, Gertner's groundbreaking ruling will allow the Courtroom View Network to stream the hearing to the website of Harvard Information Services and the websites of several media outlets, according to Nesson's legal team.

Several lawyers and bloggers who have followed the case said it is ironic that the court of appeals will post an audiotape recording of today's hearing on its website but that no trial courts have been able to do so.

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12 comments so far...
  1. I imagine that the recording industry opposes broadcast because they are aware that the precise demographic to which they sell would regard their strong-arm copyright suit as unfair, overbearing and philosophically ludicrous -that is, they are properly ashamed of their behavior. While many court policies favor privacy, this is often to protect the judicial process, or to shield victims from the stigma associated with their injury. This would not justify shielding plaintiffs from the stigma attached to their unjust behavior. Here the court's goal of fairness should favor allowing the webcast. I am reminded of the same court's courage, during the Viet Nam war, when it allowed defendants to present, as a 'defense' to various charges of civil disobedience, that the government's onging commission of war crimes compelled them to engage in the acts of protest for which they were prosecuted. I don't credit the music copiers with any high purpose. On the contrary, I believe their prosecution is an inequitable use of laws (and penalties) that were drafted to address counterfeiters and illicit publishers, not casual consumers, and that the court has inherent power to allow the webcasts no matter what the court rules of yesteryear may have provided.

    Posted by Mike Falkoff April 8, 09 01:55 PM
  1. In my case, the defendants were denied their request to have a camera in the courtroom in order to PROTECT themselves from the abuses of a Superior Court judge . He was denying the defendants a stenographic record and then making up his own version of events. Remarkably, the Massachusetts Appeals Court upheld this standard, even when presented with a sworn affidavit of an officer of the court and knowing that the public record documented that publicly elected officials found it necessary to call in state troopers to protect the defendants from the "terrifying" abuse they saw them being subjected to. . . . . . . . . . . . . The case involved millions in property rights for transfer to insiders of the court. . . . . . . . . . . . You want a fair trial in a Massachusetts? Don’t count on it until defendants are allowed to have cameras in the courtrroms in order to PROTECT THEMSELVES from the hair raising abuses of the present Massachusetts courts.

    Posted by Brokentrust April 8, 09 02:15 PM
  1. How many times does one have to repeat this for it to get through to the more dense members of the population. Stealing is stealing, even if every body else does it. DUH!
    Arguing to have this trial broadcast over the internet is just a publicity stunt hoping to delay the trial until they can claim they did not get a speedy trial and the resultant verdict should be thrown out.

    Posted by bert f. April 8, 09 03:08 PM
  1. The recording industry is out of control. These people they sue are the ones who are their best customers. Time to realize things have changed and stop suing people. Everyone pirates music, movies, and TV , and if you don't you live in the stone age.

    Posted by RIAAsucks April 8, 09 03:29 PM
  1. Sunshine should be allowed to shine on everything and everyone. Those who oppose it have something to HIDE. Other than for purposes of witness and child protections, there is no room for secrecy of any kind in a court of law.

    Posted by Opposition April 8, 09 04:02 PM
  1. While I agree that the underlying issue here, whether those who obtain music files by downloading them online without paying a fee, is somehwat controversial. I'm not sure that allowing casual consumers the freedom to ignore existing copyright law is as insignificant as some make it out to be.

    The music industry make in fact be its own worst enemy in all of this, but given the millions, if not billions of casual consumers that have access to the internet and the ability and opportunity to download the creative work of musical artists whose work is protected under existing copyright law, the loss to the artist or other copyright holder can be significant.

    While I apprciate the underlying philosophy of the copy left movement and open source efforts, I am left thinking that if someone does not believe in the fairness of copyright law, then they should not copyright their work. But by the same token, they should not be able to inflict their value judgments on those who seek protection under existing laws.

    I'm left wondering how these advocates of freedom who ignore the intellectual property rights of those who have taken the time and paid the expense of seeking copyright protection would feel if someone who believed that other property rights protected by law should be ignored as well casually consumed other property.

    For example, would a casual consumer be allowed to drive off with their car, or make off with their cash or other personal property?

    At what point do members of society gain the right to choose which laws and rights of others are okay to violate based on their personal philosophy?

    At what point did those who seek protection under existing laws become the villains?

    Posted by Walter Joyce April 8, 09 04:50 PM
  1. Mike, your logic assumes that the recording industry's efforts to protect their copyright rights is "unfair, overbearing and philosophically ludicrous," justifies internet broadcasting of the proceedings. But if there is no merit to the industry's legal claimn, they will lose the case. If the claims do have merit, they will prevail. One person's VIEW as to the merit of a litigant's case does not justify an argument that the proceeding should be broadcast. If the industry is enforcing lawful rights afforded to it by the US Congress, it is perfectly free to do so. No outside opinion should influence whether/not it shld be broadcast

    Posted by My Fellow Prisoners April 8, 09 05:11 PM
  1. What happens in a court of law must be made public and availble for scrutiny by all. The judges remember the Lopez case and try to keep the public at bay. (Remember the broadcasting of Lopez' 2 words to the D.DA: "Sit Down! ) What the camera captured but a transcript would not reflect still gives me the shivers. Also, Brokentrust is right. The shenanegans in the MA state courts have gone way over-the-top. They even allow trials with jurors dressed in Halloween costumes. The simple act of allowing litigants cameras in the courtroom would put an end to such unregulated nonsense.

    Posted by Habeascorpus April 8, 09 05:49 PM
  1. Burt, Cases are rarely, if ever, dismissed for lack of a speedy trial in civil cases. You reference a standard applicable to criminal cases.

    Posted by Frenchy April 8, 09 05:51 PM
  1. If you steal a CD from a store, or a hundred CDs even, you do not end up paying MILLIONS of dollars in fines. This is a gross abuse on the recording industry's part and it needs to stop. These are the arguments that the defense wants to broadcast to the world, and to show that the industry has no defense against such arguments. Stealing is stealing, but this is not supposed to be a country that cuts off the hands of people stealing loaves of bread!

    Posted by osirideanx April 9, 09 10:09 AM
  1. Judge Lipez was right. If it is a good idea to webcast trial court proceedings, it should be the rule for all trials, not just ones where one party thinks it will be to its tactical advantage. I have no doubt that the free media movement has ample resources to publicize on the internet its view that this case is bullying by the big bad recording industry (which the movement has decimated) without using taxpayer-subsidized graphics from the trial court. Maybe, if the RIAA puts on a really good case, it will shame the expropriators into paying for what they steal. Not likely, though, since the public shares the ripped-off feeling that makes the thieves feel self-righteous.

    Posted by George Goverman April 9, 09 11:30 AM
  1. i think they should be allowed to downlaod music first of all because, you can download music from practically anywhere such as youtube, And besdies its just a song. and a song cant hurt you or anything and the songs is just a few min. why would u debate about that.

    Posted by bry September 3, 09 11:10 PM
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