Saturday, March 14, 2009

Tenenbaum seeks reconsideration of webcast order that he won

When William F. Buckley ran for mayor of New York in 1965, the conservative commentator was asked what he would do if he won. "Demand a recount," he memorably responded.

Now Harvard Law Professor Charles Nesson appears to be following the Buckley script in his continuing efforts to have an upcoming motion hearing in his defense of accused peer-to-peer infringer Joel Tenenbaum webcast to the world. Having won a motion to permit the webcast, Nesson has filed...a motion for reconsideration!

This takes some explaining. After Federal District Judge Nancy Gertner granted Tenenbaum's motion for the webcast, the record label plaintiffs appealed to the First Circuit. The First Circuit then announced it found a 1996 Judicial Council resolution -- previously missed by all involved -- hostile to cameras in District Court courtrooms. The First Circuit asked for additional briefing to address the resolution, and Judge Gertner also invited a motion for reconsideration.

One would expect such a motion for reconsideration to come from the labels, which lost in the District Court. But the labels demurred, deciding instead to keep the focus on the First Circuit. But Nesson apparently couldn't resist, and filed a motion (a day past the court's deadline) asking for reconsideration (and then reaffirmation) of the motion he won!

Tenenbaum's first legal argument is actually interesting; he claims that the 1996 resolution is ineffective because it was not properly subject to public notice and comment. I don't have an opinion on the merits of that claim yet. The factual evidence presented does not seem to definitively settle the question; it's limited to a declaration from an attorney for Courtroom View Network (which will facilitate the webcast, if it occurs) who says he spoke with a court official who "could not find any record of the Resolution having been distributed to the public." But just because this official couldn't find the record of distribution doesn't mean that it never happened. (Tenenbaum's second argument -- that it's a violation of his constitutional right to an open trial if there's no webcast -- is, I'm afraid, a non-starter. Federal courts have not been receptive to the argument that there's a constitutional right to cameras in the courtroom.)

Bottom line: I think we can safely say that this webcast issue now officially qualifies as a procedural morass. There is briefing occurring on the same issue simultaneously in the District Court and Court of Appeals. And who knows what will happen if Judge Gertner reverses or modifies her webcast order before the April 8 oral argument in the First Circuit (which, irony of ironies, will be webcast)?

(h/t Recording Industry vs. The People)

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