Allow Web coverage of music-sharing suit, lawyer urges court

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

Tenenbaum, a 25-year-old student seeking a doctorate in physics, clicked seven times on his computer to download seven songs and found himself being sued for thousands of dollars by the recording industry, said Nesson.

But Daniel J. Cloherty, who represents the recording industry, said District Court Judge Nancy Gertner flouted a rule adopted by federal trial judges in Massachusetts in 1990 when she approved a motion by Tenenbaum to allow Internet access to the hearing. 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.

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

Officials from the recording industry contend 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 yesterday misstated the number of songs Tenenbaum downloaded and that hundreds of songs are at issue in the case.

The hearing in question, which is tentatively scheduled for April 24, is expected to consider several key motions, including the record labels' attempt to dismiss Tenenbaum's counterclaims against them.

It was hard to gauge, based on the questions of the judges, how the appeals 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 the rule should be interpreted.

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 shown on television, Gertner said in her Jan. 14 ruling.

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

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

Jonathan Sherman, a Washington, D.C., lawyer for the Courtroom View Network, sided with Nesson. He argued that other district court judges in Massachusetts have made exceptions to the ban on cameras and recording equipment. He noted, for example, that when the number of spectators exceeded courtroom seating in high-profile trials, judges have set up television monitors in nearby courtrooms for the overflow.

Several lawyers and bloggers who have been following the case said it was bizarre that the court of appeals planned to post an audiotape of yesterday's arguments on its website but that no trial courts have been allowed to do the same.

"The court of appeals providing a webcast of an oral argument about whether the district court may allow a webcast gives new meaning to the word 'irony'," said Ben Sheffner, a Los Angeles copyright lawyer who has been following the case closely on his blog Copyrights & Campaigns.

Saltzman can be reached at jsaltzman@globe.com.