Federal Judge in Boston Orders Groundbreaking Webcast of Hearing

United States District Court Judge Nancy Gertner agreed today to allow video cameras into her Boston courtroom to provide live Internet coverage of a hearing next Thursday in the lawsuit against Boston University graduate student Joel Tenenbaum, who allegedly downloaded seven songs illegally over a peer-to-peer network.

Background on the case from Judge Gertner's order:

This case, like many others now before the Court, is one for copyright infringement under 17 U.S.C. § 106. The Plaintiffs are some of the nation's largest record companies. The Defendants in these consolidated cases are individual computer users -- mainly college students -- who, the Plaintiffs claim, used "peer-to- peer" file-sharing software to download and disseminate music without paying for it, infringing the Plaintiffs' copyrights.  Many of the Defendants have defaulted or settled, largely without the benefit of counsel, subject to damages awards between $3,000 and $10,000.

Joel Tenenbaum ("Tenenbaum") is one of the few defendants represented by counsel, Professor Charles Nesson of Harvard Law School and the Berkman Center for Internet and Society.

Lawyers for the record companies opposed Tenenbaum's request to "admit the Internet into the courtroom," arguing that Judge Gertner lacked the authority to allow cameras in the courtroom and asserting that Tenenbaum's ulterior motive was "to influence the proceedings themselves and to increase the Defendant's and his counsel's notoriety."

Judge Gertner disagreed with the record companies, noting that "their objections are curious."

At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation. 

In analyzing whether allowing video cameras into the courtroom is in the public interest, Judge Gertner revealed a deep understanding of how technology has changed the way we receive and share information.

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. . . . It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if almost exclusively, over the Internet. . . .

Judge Gertner said she will allow Courtroom View Network, a New York-based company that webcasts trials in state courts, to "narrowcast" the hearing in its entirety to the website of the Berkman Center for Internet & Society, which will make the feed available to the public.  While today's order applies only to one hearing, Judge Gertner said she will address requests for further Internet coverage as the case proceeds.

Let's hope other courts follow Judge Gertner's lead.

Update:  On January 16, 2009, the plaintiff record companies filed a motion to stay Judge Gertner's order 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 really don't want the world to catch a glimpse of how they are prosecuting these cases.  Just take a look at their conclusory assertions as to how they will be irreparably harmed if Judge Gertner allows the public to view a broadcast of the hearing.  See Petition at 20-22.  More from David Post at Volokh Conspiracy, who asks "Seriously, Who Is Advising These Guys?"

Second Update: Judge Gertner has postponed the hearing until February 24, 2009.

(Note: I am a fellow at the Berkman Center for Internet & Society, which will be assisting in the webcast.)


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