Webcam to cover music suit

High-interest case gets first court OK

In the first such ruling in the federal judiciary in Massachusetts, a judge in Boston agreed yesterday to allow video cameras in the courtroom to provide live Internet coverage of a high-interest lawsuit against a Boston University graduate student accused of downloading music illegally.

US District Court Judge Nancy Gertner said she will allow Courtroom View Network - a New York-based company that webcasts trials, primarily in state courts - to chronicle a key hearing Jan. 22 in the suit against the student, Joel Tenenbaum, by a group that represents the US recording industry.

The Judicial Conference, which sets policy for the federal judiciary, has long banned cameras and recording equipment in courtrooms, with narrow exceptions. But Gertner said she believes the prohibition is advisory and should be set aside in a case that has garnered keen interest on the Web, particularly among young people.

"In many ways, this case is about the so-called Internet generation, the generation that has grown up with computer technology in general and the Internet in particular, as commonplace," Gertner wrote in an 11-page order. "It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet."

The ruling responded to a request for Internet access by Harvard Law School professor Charles Nesson, a founder of the Berkman Center for Internet & Society at Harvard who is defending Tenenbaum.

Tenenbaum, accused of downloading seven songs illegally from a peer-to-peer network, faces potential damages of more than $1 million.

Nesson, who has asked law students to help mount a defense, said in court papers that webcasting would shine a light on a lawsuit "prosecuted by a dying CD industry against a defendant who did what comes naturally to digital kids."

Jonathan Lamy - a spokesman for the Recording Industry Association of America, which brought the suit against Tenenbaum - declined to comment last night.

Lawyers for the association, which is based in Washington, had argued in court papers that Gertner lacked the authority to allow cameras in the courtroom. They also said Nesson's motive was "to influence the proceedings themselves and to increase the defendant's and his counsel's notoriety."

The order issued by Gertner applies only to next week's hearing, but she said she will address requests for further Internet coverage as the case proceeds. A jury trial is scheduled for March 30.

Under the order, Courtroom View Network will "narrowcast" the hearing to the website of the Berkman Center, which will make it available to the public free.

Tenenbaum, a 25-year-old student seeking a doctorate in physics, praised the ruling and said he "really couldn't think of any legitimate reason for this to not be approved." To many people, he said, the courts are "like a black box" where only the people in the courtroom can see justice being dispensed.

When the hearing is streamed live on the Web, he said, viewers will witness the "absolutely egregious disparity" between the two sides in the case.

"On one side, you have this large legal team who does this professionally, and on the other side you have, to quote Nancy Gertner, a bunch of average Joes," he said.

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

In 1991, the Judicial Conference began a three-year pilot program to allow cameras and tape recorders to cover civil proceedings in six district courts (including those in Massachusetts) and two appellate courts. But the conference concluded that cameras might intimidate some witnesses and jurors and scrapped the experiment.

Some judges were also dismayed by the televised spectacle of the O.J. Simpson murder trial in a California state court in 1995.

Since at least 1996, however, several federal trial 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 the Court TV network, Gertner wrote in her order. In addition, appellate courts in at least two circuits also permitted camera coverage of some proceedings.

In 1996, the Judicial Conference urged each of the nation's circuit judicial councils to adopt a ban on cameras in district courts, but none has done so, Gertner said. "Although entitled to considerable weight, the position of the Judicial Conference opposing televised district court proceedings does not bind this court," she wrote.

Gertner, who blogged on legal affairs last year for Slate magazine and has recommended that judges speak out on important legal issues, testified in 2007 before the US House Judiciary Committee on the merits of allowing cameras in federal courtrooms.

Next week's court hearing will deal with several outstanding motions, including a counterclaim by Tenenbaum challenging the constitutionality of the suit.

Jonathan Sherman, a lawyer for Courtroom View Network based in Washington, said that the network does more than webcast trials, that it also shows viewers transcripts and other documents to shed light on legal proceedings.

Gertner's ruling, he said, is a "litmus test of how far we've come from O.J. and how far we've come in the information age from old notions of watching television to new notions of actively participating in the exchange of information through the Internet."

The recording industry sued Tenenbaum over songs it says he downloaded when he was about 17. File-sharing exploded in popularity in the late 1990s with the advent of Napster, which allowed people to swap songs from one computer to another. A series of lawsuits by record companies killed the service in 2001, but led to several imitators, including Limewire and Kazaa.

In 2003, the recording industry began to attack those services by going after their users. The industry has filed about 35,000 lawsuits to stop illegal music downloading, which it blames for billions of dollars in lost sales.

Almost none of the cases have gone to trial, however, largely because defendants who lose can be ordered to pay up to $150,000 for each illegally downloaded song. Most of the defendants have paid settlements ranging from $3,000 to $10,000.

Last month, the recording association said it has abandoned its policy of suing people for sharing songs protected by copyright and will work with Internet service providers to cut abusers' access if they ignore repeated warnings. But the association said it will continue to litigate outstanding cases, most of which are in the warning phase prior to a lawsuit being filed.

Saltzman can be reached at jsaltzman@globe.com.