United States District Court Judge Nancy Gertner has postponed what would have been the first live webcast of a federal court hearing scheduled for tomorrow in order to give the plaintiffs in the case an opportunity to seek appellate review of her decision allowing video cameras into her Boston courtroom.
Last week, Gertner issued an order allowing the Courtroom View Network to "narrowcast" the hearing in a lawsuit against Boston University graduate student Joel Tenenbaum, who allegedly downloaded seven songs illegally over a peer-to-peer network. (The hearing was to be made available to the public on the website of the Berkman Center for Internet & Society).Shortly after Judge Gertner issued her order, the plaintiff record companies filed a motion to stay the decision and filed in the First Circuit a Petition for a Writ of Mandamus or Prohibition and an Emergency Motion for Expedited Consideration, seeking to overturn the order.
It's clear that the record companies really don't want the world to catch a glimpse of how they are prosecuting these cases. Just take a look at their assertions as to how they will be irreparably harmed if Judge Gertner allows the public to view a broadcast of the hearing:
Petitioners are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioner’s case. The district court has attempted to fix this problem by ordering the broadcast to be “gavel to gavel” and that there be no “editing” of the proceedings. See Order at 10. But this restriction will be virtually impossible to enforce, as non-parties will still be able to excerpt and circulate portions of the proceedings in a variety of edited forms.
Petition at 21-22. So the record companies believe they will be irreparably harmed if someone makes a mashup of the video? As David Post at Volokh Conspiracy asks, "Seriously, Who Is Advising These Guys?"
The hearing has been rescheduled for February 24, 2009.
Correction: One of our readers has informed me that the Courtroom View Network previously webcast hearings in two federal cases in New York: a November 28, 2007 hearing in GVA Market Neutral Master Limited v. Veras Capital Partners, Civil No. 07-0519 (S.D.N.Y.), and a status conference and motion hearings in March 2008 in In re: Zyprexa Products Liability Litigation, No. 04-MD-1596 (E.D.N.Y.). (Thanks, Eric!)
(Note: I am a fellow at the Berkman Center for Internet & Society, which may be assisting in the webcast.)