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Sony v. Tenenbaum - Court Rules Jan. 22 Hearing Can Be Streamed; Sony Appeals
Saturday, January 17 2009 @ 02:46 AM EST

The court in Sony BMG Music v. Tenenbaum -- the case about a guy who allegedly downloaded seven songs over Kazaa years ago when he was 17 and who is now facing a damages claim of $1 million dollars -- has ruled [PDF] that the hearing on some defense motion can be streamed on the Internet. The hearing is set for January 22nd, beginning at 2 PM Eastern, which is why I'm telling you about it now. We may find the streaming issue decided at the last moment, so this is to prepare you, in case it goes forward.

Update: The hearing has been postponed [PDF] by Judge Gertner until Feb. 24.

However, Sony has just filed a Notice of Appeal [PDF] and is asking the lower court to stay the order -- here's Sony's District Court Motion for Stay [PDF] -- so there may be a delay while the courts work the streaming issue out. But the hearing will happen with or without the Internet, although I'll have to keep you posted on precisely when. If it happens on January 22nd, and I hope it will, Harvard's Berkman Center for Internet and Society will have it live. If it doesn't get streamed, I hope some of you in the Boston area will attend for us and send us reports. The case will be tried in Boston, Massachusetts, beginning on March 30th, as currently scheduled, in the US District Court for the District of Massachusetts.

I know. I said I wouldn't be doing any articles for a bit, but this is too fascinating and exciting an opportunity, to get to "attend" oral arguments together in a case of this significance, no matter where we are, no matter what side we may be on, and in our jammies even... I so love the Internet.

We'll have to wait and see what happens, but meanwhile we can use the time to get up to speed. I hope the appeals court lets the streaming go forward. I'm very much looking forward to this event. The plaintiffs? Not so much. They fought against letting this happen, and they're still fighting.

Why is this case important? Let me explain, please, how I understand the issues raised by this case.

Why this case matters.

It's a significant case for a couple of reasons, but here's the one that matters most to me. The defendant's lawyer, Charles Nesson, Harvard Law Professor and a founder of the Berkman Center, is introducing the US Constitution into the discussion. Here's a YouTube interview with Nesson, where he explains the issues from his point of view. His client has filed counterclaims for abuse of process, and at issue is whether it's Constitutional for the music industry to get legislators to pass laws allowing civil trials in file-sharing cases with damages set at excessive levels that don't seem to match the "crime". And if file-sharing is illegal, why are these cases being prosecuted in civil court by private entities? Here's the Notice of Constitutional Question [PDF].

You know how I keep telling you that the courts may be slow, but in time, they start to get it? Well, they're starting to get it, and we're all noticing that the penalties for file sharing aren't equivalent to penalties for stealing a CD from WalMart with the same number of songs on it. Specifically, the defendant is asking if a law can be constitutional that allows civil actions by private entities for what are supposedly criminal matters, when doing so removes safeguards a criminal defendant would otherwise have.

Here's a snip from the Notice of Constitutional Question, challenging the constitutionality of the Copyright Act of 1976 and the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 by raising the following questions:

Statement of questions:
  • The Acts authorize prosecutions which are civil in form but criminal in nature. Plaintiffs are attempting to enforce them against Defendant without the criminal safeguards to which he is entitled to under the constitutional requirements of criminal procedure.
  • The Acts unconstitutionally delegate prosecutorial power to private parties.
  • The Acts violate constitutional separation of powers by enlisting civil courts and civil process in the prosecution of a strategy of legal extortion being pursued for ulterior purpose.
  • The Acts, as applied to Defendant, violate the substantive Due Process requirements of the Fifth and Eighth Amendments to the Constitution by mandating grossly excessive minimum statutory damages and allowing grossly excessive maximum statutory damages.
There are three issues that will be argued at the hearing, a Motion to Amend Counterclaims [the Counterclaims as pdf], an Opposition to the Plaintiffs' Motion to Dismiss Counterclaims, and a Motion to Join the Recording Industry Association of America ("RIAA"). Here's what the judge, the Hon. Nancy Gertner, wrote when rejecting the plaintiff's objections to the limited streaming of the hearing:
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 not almost exclusively, over the internet....

Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the internet....The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these file- sharing lawsuits.... No reason has been suggested to depart from the policy that, in general, the public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, so long as there is no interference with the due process, the dignity of the litigants, jurors, and witnesses, or with other appropriate aspects of the administration of justice. In re Zyprexa Products Liability Litigation, 2008 WL 1809659 (E.D.N.Y. Mar. 4, 2008) (citing Diane L. Zimmerman et al., Let the People Observe Their Courts, 61 Judicature 156 (1977))....

The Court believes that the upcoming motion hearing is an instance where recording and broadcast falls squarely within the public interest. The First Amendment suggests that court proceedings be open to the public "whenever practicable."...

"Public" today has a new resonance, especially in this case. The claims and issues at stake involve the internet, file-sharing practices, and digital copyright protections. The Defendants are primarily members of a generation that has grown up with the internet, who get their news from it, rather than from the traditional forms of public communication, such as newspapers or television. Indeed, these cases have generated widespread public attention, much of it on the internet. Under the circumstances, the particular relief requested -- "narrowcasting" this proceeding to a public website -- is uniquely appropriate.

Let the People Observe Their Courts.

Indeed. Let's do. To help you, here are the other significant filings so far.

The order also makes clear that no other recording devices are permitted, so if by any chance you are in the Boston area and decide to go in person, please respect the judge's order.

The Deposition

I found it interesting, albeit uncomfortable, to listen to the audio of the deposition of the defendant, conducted in September. As the judge clearly recognizes, these cases are about a generational culture clash. The deposition captures that clash perfectly.

I hear the defendant frantically trying to figure out how to answer the questions so as to protect himself and his friends and family as best he can from what he may view as ravenous wolves going for all their throats, without knowing the "lingo" in depositions, and hence at a serious disadvantage. If this were a criminal prosecution, obviously the rules would be very different. As it is, he's stuck. By the way, while the alleged downloading happened when he was 17, he's now a graduate student. He offered $500 as restitution, I've heard, but he was turned down. They want the cool million, I guess.

And on the other side, the plaintiff's lawyers seem indignant that Joel showed no "respect" -- first, by allegedly file sharing and then showing up for his deposition in a red T-shirt and sun glasses. The nerve! It's almost at the level of a Monty Python sketch. But there's a darker side to it, when you recall that Sony wants a million dollars for seven songs, if he downloaded or uploaded them, or whatever they think he did.

Of course one thinks about Les Miserables. Seven songs, folks, are not worth a million dollars. Period. Should you fine people a million dollars for listening to music? Don't we all do that on the radio? What exactly is the difference? The younger generation simply can't figure out why the music industry doesn't set it up like the radio and leave them alone. And the older generation thinks like landowners -- trespass on *my* land and I'll shoot you on sight, so to speak, and the law says I can.

This case asks the question: even if a defendant is guilty of file sharing, what should the penalty be? And who gets to bring him to a courtroom? What damages or penalties are appropriate? Life in jail for a loaf of bread offends one's sense of simple justice. What about a million bucks for seven songs? If you stole a CD with seven songs from WalMart, do you pay a million dollars in damages? If you listen to seven songs on the radio? What's the difference?

Maybe it is time to reflect on proportionality, even if, like me, you believe copyright law is important. This isn't the Middle Ages, after all, so where is the line? That's the concept. But it's framed in Constitutional terms, and that is the context in which Sony will have to defend its conduct.

My reflections, as I was listening to the deposition, which I found painful, were on the theme of culture clashes. I heard the plaintiffs' lawyers treating the accused with disgust and disdain, until they realized his lawyer was taping the deposition. And the defendant was trying not to incriminate himself, his family and his friends, but was so totally in the dark as to how to do it successfully, while his disgust for the plaintiff's position also shines through. It's like he's saying, in his mind, "Are you guys *kidding*? Seven songs? You want a million for that?" And the plaintiffs' lawyers have their subtext too, "We're going to crucify you, as an example to others, so they'll quit ruining our client's business."

And I'm sitting there thinking, why can't they set up the Internet like the radio? You could listen to music all day on the radio, and no one deposes you as to how many songs you listened to or views it as copyright infringement. To young people, the Internet is exactly the same as a radio, a place to listen for free so you know what you want to buy, if anything. How else can you decide? They don't comprehend why the music industry can't just set up a payment system, and laws, to work like the radio. A true culture clash.

For example, Tenenbaum reportedly asked what he should wear to the deposition, and he was told that everyday clothes were fine, so he showed up in a red Red Sox T-shirt, with the idea that he wanted to send a message that Sony isn't a Boston company -- the lawyers were from Denver -- so it was symbolic of the Red Sox win in the World Series. But to the plaintiff's lawyers, it was interpreted as a signal that the defendant was being disrespectful because he wasn't in a suit. How do you fix a culture clash like that?

The two sides' attorneys go off the record in tape 1, and they each present what they really think of each other's clients' behavior, and it's a hopeless conversation, a dispute that only a judge can resolve, and of course the law is disproportionately on just one side.

But in the US, when all else fails to protect you on an uneven playing field, there is the US Constitution. It was written with the express determination to protect the little guy from overreaching power. And so it is being brought into the RIAA context now, in the hopes of evening out the playing field a little.

The deposition becomes particularly uncomfortable to listen to when the plaintiff's lawyer forces Joel to reveal who else may have used his computer when he was 17 and living at home and the alleged file-sharing occurred. He mentions, after long pauses, his parents and a high school friend, and my heart hurt thinking about the impact on this family and on the friendship and on the defendant, cornered and having to rat out his family and a childhood friend, knowing as he answered that inevitably Sony could now go after them now too, trying to prove who is the "evil filesharer" in this picture. Which apparently they did. How did we get here?

So, that's the context. I'm not trying to tell you how to feel about either of the parties, just sharing what I was feeling as I listened. Neither side, to me, came off perfectly, to be truthful, but in culture clashes, it's always that way. But the important questions are bigger than the parties, namely, if there is a real problem -- and the plaintiffs think there is, because the music industry feels like its business is circling the drain and in their minds folks like Joel who file share are the reason why -- what do you do about it? And that is where the Constitution comes into it the picture, thanks to a lawyer willing to volunteer to take on the responsibility and burden of standing up for the overwhelmed little guy, who probably feels he's being rolled over by a plaintiff with all the money it needs to hire lawyers and experts and, frankly, legislators to crush anyone it perceives as a problem.

Resources

Here's the Supreme Court ruling in Craig v. Harney, referenced in the order, dating from way back in 1947 that found that court hearings are public events and public property. Don't over parse that, by the way. There are still restrictions, as you'll see in this ruling about the oral arguments on the 22nd.

It's an interesting ruling, though, for us at Groklaw, because it stands for a general freedom of the press to report on trials without suppression or censorship. A reporter, an editorial writer, and a publisher had been jailed for "constructive criminal contempt" for what the state thought was misreporting on a trial, particularly for saying negative things about the lay judge. But if you think that this is a simple issue, read Justice Felix Frankfurter's dissent, where he highlights some dangers to anything goes by the media. What if they gang up on a judge who is right but unpopular? What if they threaten him and distort what he otherwise would have ruled?

To help you understand this point of view, recall the incident when a blog wrote an article asking if SCO had received "mob justice"? It was, as I read it, a blatant attempt to influence the judge to rule more in SCO's favor at the trial. He did rule more in favor of SCO after the trial. Is there a connection? Who knows? But it is what Frankfurter addresses -- where is the line, if there is one, and how far is too far? Can the media tell a judge how to rule in the middle of the actual process? It's a very complex question, and I hope you read the ruling in full and the dissent. [ Update: The article by Roger Parloff, "Did SCO get Linux-mob justice?", referenced here, is now 'disappeared'("The authors have deleted this blog. The content is no longer available."). However, you can still find it here, and I have a saved copy, including all the corrective comments, should any further disappearances come to pass. You can also read it on SCO's legal update page, if you don't mind visiting their site. That would be www.sco.com/company/legal/update. ]

Nothing in the law is simple, black or white. It's all about the shadings. You could write books about every detail. In fact, people do. Here's Harvard Law School's Law Library, on YouTube. How I wish someone would set it up so I could visit virtually, sit down in a virtual setting, but then read the real books online! Here's Berkman Center's 575-page Citizen Media Legal Guide, which is broken into various topics, such as Intellectual Property, Dealing with Online Risks, Newsgathering and Privacy, and Risks Associated with Publication. The purpose is to help nonprofessional and professional journalists "understand the legal environment they are operating in," David Ardia, Director and CoFounder of the CMLP, writes.

I'll give you an example, from the Risks Associated with Publication. Many think that it's OK to say whatever they wish, as long as the facts are true. Of course, it's not that simple. Actually, some out there may not realize it, but you can't defame someone by making up negative things about them, but there is another area of concern, highlighted by the guide:

Second, if you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This would include such things as writing about a person's medical condition, sexual activities, or financial troubles.
Did you know that? Did you know you can get in trouble for publishing someone's photo or even using someone's name without permission? For publishing certain confidential business information? See how complicated?

But then, viewed from a different angle, why shouldn't there be fine lines drawn, to accommodate the complexity of human activity and situations? Aren't you glad there is a concept like invasion of privacy? I am. Given the low ethics of some, someone has to draw a line for those who have no heart and no internal compass to find that line on their own.

You probably study insurance policies and investment materials in detail, not that the latter seems to help anyone these days, I might add, but at least most of us try to know what we're doing before we act. So in legal matters, it's appropriate to do our best to know what the law is and try to be guided by it. The risks are manageable, but you do need to pay attention to more than just an overview, so as to take reasonable steps to avoid obvious pitfalls if you are publishing on the Internet or anywhere else. So, if you're blogging, study!

Here, then, is the order as text, and as usual, the only changes we've made are to collect the footnotes at the end, for the benefit of those who use screen readers, and munging an email address, so bots don't scoop it up and spam away with it.

I look forward to sharing this historic event with you.

*************************************

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

CAPITOL RECORDS, INC., et al.,
Plaintiffs,

v.

NOOR ALAUJAN,

Defendant.

________

Civ. Action No.
03cv11661-NG
LEAD DOCKET NO.

____________________________

SONY BMG MUSIC ENTERTAINMENT, et al.,
Plaintiffs, v.

JOEL TENENBAUM,
Defendant.

______

Civ. Action No.
07cv11446-NG
ORIGINAL DOCKET NO.

____________________________

GERTNER, D.J.:

ORDER RE: MOTION TO RECORD AND NARROWCAST HEARING
January 14, 2009

The Defendant's Motion to Permit Audio-Visual Coverage by the Courtroom View Network ("CVN") (document # 718) of the January 22, 2009, hearing over a secure internet connection is GRANTED. CVN will "narrowcast" the audio-visual coverage to the website of the Berkman Center for Internet and Society, which will make the recording publicly available for all non-commercial uses via its website.

I. INTRODUCTION

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. He has chosen to challenge the action through a Motion to Amend Counterclaims (document # 686), his Opposition to the Plaintiffs' Motion to Dismiss Counterclaims (document # 676), and a Motion to Join the Recording Industry Association of America ("RIAA") (document # 693), all of which will be heard on January 22, 2009. Whether those counterclaims survive or not, he will proceed to a jury trial in this Court currently scheduled for March 30, 2009. While Tenenbaum's Motion to Permit Audio-Visual Coverage by CVN (document # 718) is directed to all proceedings going forward, this Order addresses only the proceeding on January 22, 2009, where legal arguments on the motions above will be heard.

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

2

largely, if not almost exclusively, over the internet. See generally Martha Irvine, Generation Raised Internet Comes of Age, MSNBC.com, Dec. 13, 2004, http://www.msnbc.msn.com/ id/6645963/. Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the internet.

While the Plaintiffs object to the narrowcasting of this proceeding, see Pl. Resp. to Mot. to Allow CVN to Provide Coverage (document # 728), 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.1

Nothing in the local rules of the District Court of Massachusetts, the policies of the Judicial Council for the First Circuit, life, or logic suggests that this motion should be denied. As Judge Weinstein noted: "No reason has been suggested to depart from the policy that, in general, the public should be permitted and encouraged to observe the operation of its courts

3

in the most convenient manner possible, so long as there is no interference with the due process, the dignity of the litigants, jurors, and witnesses, or with other appropriate aspects of the administration of justice." In re Zyprexa Products Liability Litigation, 2008 WL 1809659 (E.D.N.Y. Mar. 4, 2008) (citing Diane L. Zimmerman et al., Let the People Observe Their Courts, 61 Judicature 156 (1977)); see also Robert Barnes, A Renewed Call To Televise High Court, Wash. Post, February 12, 2007 at A15 ("The two newest justices, Roberts and Samuel A. Alito Jr., sounded open to the possibility during their confirmation hearings, and Alito favored allowing cameras in his previous job as an appellate court judge.").

Much like the proceedings before then-Judge Alito and audio- visual coverage of legal arguments in Courts of Appeals around the country, the district court hearing now at issue involves only legal argument. Moreover, coverage will be "gavel to gavel" -- streaming a complete recording of the hearing to a publicly available website -- not edited for an evening news soundbite. The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these file- sharing lawsuits.

4

II. DISCUSSION

Local Rule 83.3(a) permits the recording and broadcast of courtroom proceedings in certain circumstances expressly enumerated in the Local Rules, see D. Mass. Local R. 83.3(a)-(d), or "by order of the court."2 As written, this residual clause does not carry any limitation; instead, it assigns the decision to permit recording or broadcast to the discretion of the presiding district court judge.

The Court believes that the upcoming motion hearing is an instance where recording and broadcast falls squarely within the public interest. The First Amendment suggests that court

5

proceedings be open to the public "whenever practicable." In re Zyprexa Products Liability Litigation, 2008 WL 1809659 (E.D.N.Y. Mar. 4, 2008) (permitting recording of district court proceedings). As the Supreme Court noted in Craig v. Harney, 331 U.S. 367, 374 (1947), "[a] trial is a public event. What transpires in the courtroom is public property."

"Public" today has a new resonance, especially in this case. The claims and issues at stake involve the internet, file-sharing practices, and digital copyright protections. The Defendants are primarily members of a generation that has grown up with the internet, who get their news from it, rather than from the traditional forms of public communication, such as newspapers or television. Indeed, these cases have generated widespread public attention, much of it on the internet. Under the circumstances, the particular relief requested -- "narrowcasting" this proceeding to a public website -- is uniquely appropriate.

The Defendant has assured the Court that the recording and narrowcast of the January 22, 2009, hearing will be publicly available for all non-commercial uses via the Berkman Center's website at http:// cyber.law.harvard.edu/. The January 22, 2009, hearing will include only oral argument by the attorneys representing the parties -- no criminal defendants, jurors, or

6

witnesses will be exposed to public view.3 In fact, CVN intends to use unobtrusive cameras already installed in the courtroom, diminishing the likelihood that the recording will disrupt the Court's business. The coverage will be gavel-to-gavel, meaning that the Berkman Center will not edit the videostream in any way. Given the nature of this particular hearing, few factors counsel against allowing the proceeding to be broadcast, while the public has much to gain.

The Court recognizes that, despite a three-year experiment with courtroom cameras in the 1990s, the Judicial Conference continues to oppose the recording of district court proceedings in all but a narrow set of circumstances. See Administrative Office of the U.S. Courts, Guide to Judiciary Polices and Procedures, Vol. 1, Ch. 3, Part E.3.4 The Conference permits the broadcast of oral arguments in Courts of Appeals, at the discretion of the Court, but not analogous proceedings -- oral

7

arguments -- in district court. See News Release: Judicial Conference Acts on Cameras in Court, Administrative Office of the U.S. Courts, Mar. 12, 1996 (document # 720-14). Although entitled to considerable weight, the position of the Judicial Conference opposing televised district court proceedings does not bind this Court. See, e.g., United States v. Merric, 166 F.3d 406, 412 (1st Cir. 1999) (noting that "the views of the Judicial Conference are entitled to respectful attention," but are binding only on a few matters); In re Cargill, Inc., 66 F.3d 1256, 1267 (1st Cir. 1995).

Pursuant to their own local rules, a number of individual district court judges in the Eastern and Southern District of New York have allowed specific hearings in civil cases to be recorded and broadcast since at least 1996. See E.D.N.Y. & S.D.N.Y. Civ. R. 1.8; Marisol A. v. Giuliani, 929 F. Supp. 660 (S.D.N.Y. 1996) (Ward, J.); Sigmon v. Parker Chapin Flattau & Klimpl, 937 F. Supp. 335 (S.D.N.Y. 1996) (Leisure, J.); Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580 (S.D.N.Y. 1996) (Sweet, J.); Hamilton v. Accu-Tek, 942 F. Supp. 136 (E.D.N.Y. 1996) (Weinstein, J.); GVA Market Neutral Master Limited v. Veras Capital Partners, No. 07-cv-00519 (S.D.N.Y.); CCM Pathfinder Pompano Bay, LLC v. Compass Financial Partners LLC, et. al., No. 08-cv-05258 (S.D.N.Y.); In re Zyprexa Products Liability Litigation, 2008 WL 1809659 (E.D.N.Y.) (Weinstein, J.).

8

Indeed, after the Marisol case, in which Judge Ward permitted CVN coverage of a proceeding, the Judicial Conference approved a resolution in March 1996 "to strongly urge each circuit judicial council to adopt" Conference policy banning cameras, and to "abrogate any rules of court" that conflict with that policy. See 929 F. Supp. 660; News Release: Judicial Conference Acts on Cameras in Court, Administrative Office of the U.S. Courts, Mar. 12, 1996 (document # 720-14). To date, no circuit judicial council -- including the First Circuit judicial council which binds this Court -- has done so.5

Nothing indicates that the integrity of the proceedings or the interests of any party have been prejudiced by the use of courtroom cameras in these cases. The Plaintiffs' concern here that jurors will be prejudiced by internet coverage is specious. The judicial system relies on voir dire to ferret out those jurors who have followed a case, whether it be through newspapers, television, or now, the internet. The judicial system likewise relies on the good faith of jurors not to perform research about a case in any media format or other medium. Going forward, the Court will add an admonition about the internet to

9

address concerns about juror exposure to previous coverage of the case, of whatever variety.

Under these circumstances and with the discretion afforded by Local Rule 83.3(a), the Court believes it is fully appropriate to allow the public a wider window into the judicial proceeding at hand.

III. CONCLUSION

Based on the foregoing analysis, the Court GRANTS the Defendant's motion to allow CVN to record and narrowcast the January 22, 2009 hearing (document # 718), subject to the following conditions:

1. This Order is limited to the January 22, 2009, hearing; the Court will address any further "narrowcasting" should that be necessary;

2. The CVN narrowcast is the only recording of the hearing allowed -- no other private recording or broadcast, whether audio or visual, is permitted;

3. The Berkman Center for Internet and Society will act as a subscriber to the CVN narrowcast and will make the recording publicly available for all non-commercial uses via its website;

4. CVN will use the cameras already installed in Judge Gertner's courtroom (Courtroom 2), as indicated by Attorney Nesson at the January 13, 2009, telephonic conference; 5. The "narrowcast" will be gavel-to-gavel, with no editing by CVN or the parties; and

6. CVN will immediately contact Chris Gross, the Court's IT specialist, at chris_gross at mad.uscourts.gov to coordinate the narrowcast feed from the courtroom cameras.

SO ORDERED.

10

Date: January 14, 2009

/s/Nancy Gertner
NANCY GERTNER, U.S.D.C.

1 It is possible the Plaintiffs have now changed their minds about the virtues of this strategy. See Sarah McBride and Ethan Smith, Music Industry to Abandon Mass Suits, Wall St. J., Dec. 19, 2008, available at http://online.wsj.com/ article/SB122966038836021137.html.

2 Local Rule 83.3 provides in relevant part:

(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. . . .
(b) Voice Recordings by Court Reporters. Official court reporters are not prohibited by section (a) from making voice recordings for the sole purpose of discharging their official duties. No recording made for that purpose shall be used for any other purpose by any person.
(c) The court may permit (1) the use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.
(d) The use of dictation equipment is permitted in the clerk's office of this court by persons reviewing files in that office.
Effective September 1, 1990.

3Moreover, the Court does not believe that prospective jurors are any more likely to be prejudiced by allowing the hearing to be recorded and made publicly available. As the Court has noted, this case has already generated widespread media attention quite aside from any courtroom recording. Should the case reach trial, jurors will be instructed to refrain from conducting any outside research into the litigation, exactly as they are already prohibited from accessing media accounts or other external sources of information.

4 The Judicial Conference policy statement only permits recording and broadcasting during "investitive, naturalization, or other ceremonial proceedings," or for (1) the presentation of evidence; (2) the perpetuation of the record of proceedings; (3) security purposes; (4) other purposes of judicial administration; and (5) the photographing, recording or broadcasting of appellate arguments. The policy statement appears to all but disregard the substantial similarity between appellate argument, which it allows to be broadcast, and a motion hearing before the district court. Both involve only oral argument by counsel; neither type of proceeding risks placing jurors, witnesses, or criminal defendants before courtroom cameras.

5 Much to the contrary, Congress has recently taken up legislation that would reverse Judicial Conference policy and allow cameras in the courtroom on a far more routine basis. See Sunshine in the Courtroom Act of 2008, S. 352, 110th Cong. (as reported by the S. Comm. on the Judiciary); Sunshine in the Courtroom Act of 2007, H.R. 2128, 110th Cong. (as reported by the H. Comm. on the Judiciary).

11


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