On Tuesday, January 20, 2009, U.S. District Judge Nancy Gertner temporarily stayed her order to allow oral arguments for an upcoming RIAA hearing (Sony v. Tenenbaum) to be broadcast on the Internet, and postponed the hearing until February 24, 2009 to allow the First Circuit to review her decision.
Judge Gernter’s January 14, 2009th order granting the real-time video webcast of the hearing is widely considered to be an Internet first.
Various record companies, all members of the Recording Industry Artists of America (RIAA) are suing Joel Tenenbaum for downloading and redistributing copyrighted sound recordings using KaZaA, a peer-to-peer file sharing application. The record companies have submitted KaZaA screen captures (see, e.g. Plaintiff’s Exhibits 1-3) listing sound recordings made available by “sublimeguy14”, a record linking sublimeguy14 [at] cox [dot] net to “J. Tenenbaum”, as well as a MediaSentry report listing various songs including “New Skin” and “Pardon Me” by Incubus, “Minority” by Green Day, “Come as You Are” by Nirvana, and “April 29, 1992 (Miami)” by Sublime (see Plaintiff’s Exhibit A).
Tenenbaum is attempting to join the RIAA to the case as a necessary party and counterclaims for damages against the opposing parties for continuing this lawsuit despite his prior offers to settle.
At issue is the Constitutionality of the damages provisions of the Copyright Act, 17 U.S.C. 504(c)(1). Tenenbaum argues that the Copyright Act’s minimum statutory damages of $750 per sound recording are unjustly punitive and thereby violate the Due Process clause (see Tenebaum’s Answer and Notice to the U.S. Attorney General), in light of the record companies’ actual damages incurred.
In the immediate appeal regarding the webcast order, the record companies purport to focus their arguments on the “plain language” of Massachusetts Federal District Court Local Rule 83.3. Having chosen this approach, one might wonder why, without explanation, the plain language of these Local Rules appears to be misquoted. A comparison of the cited text of Local Rule 83.3 in the record companies’ Petition For A Writ Of Mandamus Or Prohibition (at page 9) to the Massachusetts Federal District Court Local Rules (at page 74) appears to show several discrepancies, such as missing or misplaced commas, “proceedings of this court” versus “proceedings in this court”, “investigative” versus “investitive”, and “perpetuation of the record” versus “perpetuation of a record”.
Even if these discrepancies are found to be of little effect, one might more easily challenge the record companies’ assertions that their interpretation is the meaning most plain. Local Rule 83.3 states:
Rule 83.3 PHOTOGRAPHING, RECORDING AND BROADCASTING
(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 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.
(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 investigative, 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.
See Local Rules of the United States District Court for the District of Massachusetts, 74 (underline added). One might argue that the plain reading of 83.3(a), as enacted, empowers the court independently of these rules, and that 83.3(c) is permissive and merely illustrative. On its face, this seems at least as plausible as the record companies’ assertions that 83.3(c) necessarily limits the power granted to the court in 83.3(a).
The record companies bolster their assertions citing to the Judicial Conference Policy Commentary:
The general policy of the Conference recognizes a distinction between ceremonial proceedings and non-ceremonial proceedings. Cameras and electronic reproduction equipment may be used in the courtroom during ceremonial proceedings for any purpose. During non-ceremonial proceedings, they may be utilized only for the limited purposes specified in the policy statement. …
Administrative Manual, Volume I, Chapter III GENERAL MANAGEMENT AND ADMINISTRATION, Part E Cameras in the Courtroom, 26 (emphasis as in record companies’ motion) (hereinafter “Administrative Manual”). However, the core of the Judicial Conference Policy Commentary rationale appears to center upon concerns regarding “the intimidating effect of cameras on some witnesses and jurors”:
Except with respect to ceremonial proceedings and appellate proceedings, the Conference policy does not authorize the contemporaneous photographing, recording, or broadcasting of proceedings from the courtroom to the public beyond the courthouse walls. The Judicial Conference remains of the view that it would not be appropriate to require all non-ceremonial proceedings to be subject to media broadcasting. Following a three-year experiment with cameras in the courtroom, the Judicial Conference concluded that the intimidating effect of cameras on some witnesses and jurors was cause for concern. Accordingly, the Judicial Conference policy does not permit the taking of photographs in the United States district courts. In March 1996 the Judicial Conference authorized each court of appeals to decide locally whether or not to permit cameras in the appellate courtrooms, subject to any restrictions in statutes, national and local rules, and such guidelines as the Judicial Conference may adopt.
Administrative Manual, at 27. Regarding the specific hearing on appeal, what witnesses or jurors could be intimidated?
The Judicial Conference Policy Commentary continues:
Except in connection with the enumerated exceptions, the Conference policy does not authorize audio or video taping in the courtroom for the purpose of subsequent public dissemination. Where an audio or video taping is used to perpetuate the official record, that record will be available to the public and the media to the same extent that an official transcript record is currently available to them.
Administrative Manual at 27. Accordingly, it appears that the Judicial Conference Policy Commentary may support the Judge Gertner’s decision to broadcast the hearing under the plain language of Local Rule 83.3(c)’s “the perpetuation of a record”.
On a final note, notice the Judicial Conference Policy Commentary’s exception for appellate proceedings. Administrative Manual at 27. Failing all else, perhaps the public might one day be allowed to hear an RIAA appellate proceeding.
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