The record label plaintiffs' brief explains the history that led up to the 1996 resolution, which provides that the First Circuit Judicial Council "resolved...to continue to bar the taking of photographs and radio and television coverage of proceedings in the United States district courts within the circuit, except as otherwise provided for ceremonial occasions." The labels argue that this seemingly unambiguous language leaves District Court judges no discretion to permit such coverage (including webcasts). (In her order permitting the webcast, Judge Gertner seems to acknowledge that a resolution by the First Circuit Judicial Council -- which she mistakenly believed did not exist -- would bind her: "To date, no circuit judicial council -- including the First Circuit judicial council which binds this Court -- has done so." (emphasis added; footnote omitted).)
Tenenbaum's supplemental brief in the First Circuit takes the quite remarkable position that the 1996 resolution does not apply because "The resolution predated, and did not contemplate the advent of, the open Internet as a viable communications medium. By its terms, the resolution extends only to still photographs, radio and television." In other words, Tenenbaum appears to acknowledge that the resolution does ban traditional media, but permits a webcast because the word "webcast" is not mentioned. I find this argument both unpersuasive and potentially dangerous to the greater cause of press freedom. Various laws (e.g., reporter shield statutes) were enacted in the pre-Internet age and arguably don't, by their terms, apply to blogs and other web publications. But courts have nonetheless extended the laws' protection to Internet journalists -- which is a good thing. See O'Grady v. Superior Court (Cal. Ct. App. 2006) at 40-49. Tenenbaum's argument could, if adopted, create some very bad law.
One last thing: the labels declined to file a motion for consideration of Judge Gertner's order permitting the webcast -- despite her explicit invitation to do so. Instead, they filed a short "Notice" in the District Court stating simply:
In response to the District Court’s March 4, 2009, Order, Plaintiffs note that the District Court’s January 14, 2009, Order has been stayed by the First Circuit Court of Appeals and that any issues surrounding that Order are currently pending in the First Circuit. The First Circuit can resolve the broadcasting issue expeditiously without additional briefing or further appeals.
While anti-label litigator Ray Beckerman calls this filing "astonishing" and evidence of "the overwhelming incompetence of the RIAA's lawyers," there are actually several legitimate reasons for the labels to have taken this tactical path. For one, given the pendency of the appeal/writ petition, and the fact that the First Circuit has stayed the District Court's webcast order, there is genuine doubt whether Judge Gertner currently even has jurisdiction over the webcast issue. And by declining to move for reconsideration in the District Court, where Judge Gertner could possibly reaffirm her commitment to the webcast, they keep the focus in the First Circuit, which they evidently believe is a more receptive audience for their arguments, and could issue a definitive opinion that fully resolves the webcast issue in their favor, for all future proceedings in the case. (Keep in mind that Judge Gertner is a strong advocate for cameras in the coutroom and in fact so testified to a Congressional committee in 2007.)
What a mess. Keep in mind that this is a copyright case -- not an academic exercise. And whether the webcast is ultimately allowed or not, the proceedings will be open to the press and public (as they should be). Hopefully soon the First Circuit will rule definitively, and we can all focus on what this case is really all about.