Thursday, April 30, 2009

First Circuit denies Tenenbaum's en banc petition on webcast

As expected, the First Circuit has denied Joel Tenenbaum's petition for rehearing en banc of its decision barring the webcast of district court proceedings in his high-profile copyright case. The First Circuit also denied Tenenbaum's motion to stay the district court motion hearing that was to be webcast -- a hearing that was set for today (April 30). However, District Judge Nancy Gertner had already postponed the hearing until June 5, so that date will stick, unless one of the parties persuades her to move it up.

UPDATE: The labels have indeed asked Judge Gertner to move up the motion hearing, possibly to next week. The parties are also tussling over a deposition of a third-party witness that the labels would like to conduct by phone (which is permitted under Rule 30(b)(4)). Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, says he's OK with a phone depo -- but only if he can record it. The labels object to recording, fearing that Nesson's team will post it to the Internet. Sound familiar? (h/t Recording Industry vs. The People)

UPDATE 2: The issue of the identity of the potential phone deponent (called a "mystery witness" by Recording Industry vs. The People) is a bit silly. While the labels chose not to name him in their motion "out of respect for the deponent’s privacy," I was able to figure out his name by spending fewer than 10 minutes on PACER and Google. His name has been mentioned in other court papers in this case, on Tenenbaum's own web site, and on at least one anti-RIAA blog. There's no real secret here.


  1. Two days from filing to denial. I am surprised the court took so long.

    Perhaps Mr. Nesson may now consider treating this case as a lawsuit, and not as an academic experience for his students.

  2. Oh, you figured it out in less then 10 minutes!
    Good for you Ben.
    Then you probably agree with me that the real silly thing is what Eve claimed what their reason for this behaviour by them is!

    And why don't you name the witness name then?

    You was not shy to post the emails that were taken down after Team T. noticed how silly it was to publicise them!

    But I guess, since the plaintiffs here are on "your side" you don't reveal their "secrets" and show the world as broadly how silly they act too if it is true that the guy whose privacy Eve claims to be protecting while obviously everyone with a pacer account and at least as intelligent as you could find out the "secret" name without any problems.

    Do the "Pacer less" people a favour, just like you did those a favour that hadn't the luck to see the Email's themself before they were taken down again!

  3. To Alter_Fritz:

    One could certainly argue that the labels' decision not to name this deponent in their brief was unnecessary, but I have no reason to doubt the sincerity of their motivation here.

    The situation with the law professors was totally different; they voluntarily agreed to serve as experts for Tenenbaum, and *Nesson* was the one who originally posted the emails. This deponent, on the other hand, is a third party witness who did not choose to become involved in this case.

    I suspect that this deponent's identity will soon become widely known, and I will probably start referring to him by name like everyone else. I didn't see the need to do so here.


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