Cites 1990 Massachusetts law which says that “no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings” of the court, but ruling notes the law needs to be amended for the modern age if the justice system is to be perceived as fair, honest and wishes to be respected by the public at large.
A funny thing happened today. The RIAA managed to keep its copyright infringement case against accused file-sharer Joel Tenenbaum out of the public eye and in the secretive confines of a federal courthouse in Massachusetts in contradiction of its own oft repeated mantra that it’s only suing people to educate the public.
Harvard Professor Charles Nesson and his team of Harvard Law students filed a motion back on Dec 26th of last year to broadcast courtroom coverage of the file-sharing trial on the Internet, which is traditionally prohibited. Nesson is defending Joel Tenenbaum, who has been sued by the RIAA for $1,050,000 for allegedly downloading making available 7 songs in a shared folder when he was 17 years old.
“The judicial process is essentially an exercise in civil discourse,” said Nesson. “Given the keen interest of the diverse parties following this litigation closely, and the potential learning value of this case to a broad audience beyond, this case presents an ideal instance in which judicial discretion should be exercised under the auspices of the rule to admit Internet to the courtroom.”
District Court Judge Nancy Gertner, the judge hearing the case, then decided on Jan 21st of this year to authorize Courtroom View Network (CVN) to webcast the trial.
“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,” read Judge Gertner’s opinion. “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.”
Judge Gertner also makes a point of castigating the RIAA for attempting to prevent broadcasting the trial over the Internet being that it claims the whole purpose of suing file-sharers is to educate them that it’s illegal.
The RIAA quickly filed a petition to prohibit its broadcast, objecting to the fact that the trial would be streamed by the Harvard Berkman Center for Internet and Society website, which was founded by Charles Nesson, who’s representing Tenenbaum in the case, since the site is “specifically designed to promote Defendant’s interests in this case.”
Today the First District U.S. Court of Appeals ruled that Judge Gertner erred in allowing the case to be webcast on the Internet for the simple reason that a 1990 Massachusetts state law expressly forbids “webcasting and other forms of broadcasting (whether over the air or via the Internet)” to occur in federal courthouses there.
From the opinion:
We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted. Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.
We need go no further. For the reasons elucidated above, we conclude that the district court’s order of January 14, 2009, which purposed to permit webcasting of a motions hearing in a civil case, was based on a palpably incorrect interpretation of D. Mass. R. 83.3. Consequently, we exercise our advisory mandamus authority, prohibit enforcement of the challenged order, and remand the case for further proceedings consistent with this opinion.
In other words, their blocking the webast for the simple reason that Massachusetts law doesn’t allow it, not because of arguments by the RIAA that a webcast “would likely serve to highlight selectively the arguments of a single counsel in a limited part of a single case” and thus harm their case.
So what does Massachusetts law state?
D. Mass. R. 83.3. reads:
(a) Recording and Broadcasting Prohibited. Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held. This prohibition shall apply specifically but shall not be limited to the second, third, ninth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, eighteenth, nineteenth and twentieth floors of the John W. McCormack Post Office and Courthouse Building in Boston and the fifth floor of the Courthouse Building in Springfield.
Now the law does allow for some exceptions to the rule, but none are really relevant in this case.
Some of the exceptions include:
- (a) for the presentation of evidence;
- (b) for the perpetuation of the record of the proceedings;
- (c) for security purposes;
- (d) for other purposes of judicial administration; or
- (e) for the photographing, recording, or broadcasting of appellate arguments.
In this case Judge Gertner only allowed it in order to reach he calls the “so-callled Internet generation.”
However, Circuit Judge Lipez, does say the Massachusetts law is outdated and deserves to be reviewed in his opinion:
Moreover, webcasting the legal arguments of counsel in a civil motions hearing does not implicate the concerns raised by televised trials. Many judges worry that the presence of cameras in the courtroom and the enhanced publicity that cameras bring changes the nature of the trial process itself. Those fears do not realistically apply to a civil motions hearing where the judge considers and responds to the arguments of counsel. Also, there is no reason to fear the impact of webcasting on any future jury trial in this case. Trial judges can assure the seating of a fair and impartial jury with the application of familiar jury selection practices.
The Local Rule at the center of this controversy was adopted in 1990. Since its adoption, dramatic advances in communications technology have had a profound effect on our society. These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities. With its sweeping prohibition on the broadcasting or recording of district court proceedings, Local Rule 83.3 prevents such responses in civil cases. So too do the Policy of the Judicial Conference and the Resolution of the Judicial Council of the First Circuit that underlie the Local Rule. As the outcome of this proceeding demonstrates, the Rule, the Policy, and the Resolution should all be reexamined promptly.
Precisely.
For the justice system to be perceived as fair and honest it must do all it can to allow court cases to be aired in public. Providing a physical presence alone is not enough and is entirely impractical. If it fears a spectacle then it must, at a very minimum, allow the audio to be broadcast.
To block all is undemocratic and risks undermining a respect for the law by the public who may come to see the courts as secretive and detached.
“Courts have long recognized ‘that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system,’” Judge Lipez cites of earlier cases. “In our democratic society, ‘the knowledgeable tend to be more robustly engaged in public issues,’ and ‘information received by direct observation is often more useful than that strained through the media. Actually seeing and hearing court proceedings, combined with commentary of informed members of the press and academia, provides a powerful device for monitoring the courts.’”
Exactly.
The RIAA succeeded in keeping a file-sharing trial under wraps. But, in the end we win because it knows, and it knows we know, that suing Joel Tenenbaum and others like him is part of a last desperate effort by an industry dying a slow death by its own hands.
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- Judge Grants RIAA Review of Internet Broadcast of File-Sharing Trial
- Judge in First File-Sharing Trial: ‘Oops, Maybe You Do Need Actual Distribution’
- Judge: ‘Harvard Prof Can Broadcast RIAA Trial on the Internet’
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hurra to your last sentence!
we the people!
The wheels of any judicial system are very slow to change as this case proves it to be. The law needs to be updated and brought into the line with the current times.