Wednesday, February 18, 2009

First Circuit sets April 7 oral argument on Tenenbaum webcast

The First Circuit has set oral argument for April 7 in the appeal of District Judge Nancy Gertner's order permitting the webcast of an upcoming motions hearing in the case of accused peer-to-peer infringer Joel Tenenbaum.

That date complicates matters in the District Court, which had set the potentially-webcast motion hearing for Feb. 24 and the trial date for March 30. Of course, the First Circuit's decision on the webcast order would be moot if the District Court proceeded with those dates. Recognizing that, the First Circuit stated:
We stay the district court's order of January 14, 2009 (already temporarily stayed by the district court) permitting narrowcasting, pending disposition of this mandamus petition or further order of this court, whichever first occurs. We recognize that a hearing is currently scheduled in the district court for February 24, 2009 and that trial is scheduled to commence on March 30, 2009. The district court may either stay its proceedings pending our decision on the petition or it may permit the presently scheduled hearing and/or other proceedings in the case to go forward, but without being narrowcast.
In other words, the First Circuit has told Judge Gertner: you may keep to your current schedule if you'd like, but you may not permit the webcast unless and until we tell you it's OK.

I may be reading too much into this procedural order, but it does not strike me as particularly good news for those of us who favor the webcast. It seems to me that the First Circuit thinks there is at least some reasonable chance that it will overturn Judge Gertner's webcast order, and it doesn't want her to proceed with the webcast before it has the chance to stop it in its tracks. The interesting question is whether Judge Gertner will now stick to her schedule, or push it back for several months, all over the webcast issue. While I do favor the webcast, I must concede that it's an ancillary issue, and that the Court's primary focus should be on resolving the substantive legal issues at hand. The worst that can happen is that the oral argument proceeds in an open courtroom, where anyone is allowed to attend, only with no webcast -- in other words, exactly like every other hearing in federal court. Not exactly what I want, but not the end of the world, either.

(Recording Industry vs. The People characterizes the First Circuit's order as a stay of "proceedings," but that's not right. The First Circuit merely stayed the District Court's webcast order, the proceedings may...proceed; it's just that they can't be webcast unless and until the court of appeals gives its go-ahead.)


  1. When it comes to things I post you do not read carefully. Please apologize. Perhaps you overlooked this text from the order:

    We stay the district court's order of January 14, 2009
    (already temporarily stayed by the district court) permitting
    narrowcasting, pending disposition of this mandamus petition or
    further order of this court, whichever first occurs.

  2. And here is how I "characterized" it, word for word:

    In SONY BMG Music Entertainment v. Tenenbaum, the appeals court has issued a further stay of proceedings, while it considers the RIAA's petition to prevent the televising of the February 24th oral argument, giving District Judge Gertner the option of either proceeding without televising, or awaiting the appeals court's further ruling.

    So please if you're going to keep trying to disparage show a little bit of intellectual integrity in doing it.

  3. Ray, you wrote in your post: "Appeals court stays proceedings..." (headline) and "the appeals court has issued a further stay of proceedings" (body). That is incorrect. The First Circuit did *not* stay the "proceedings."

    As I accurately pointed out, the only thing that the First Circuit stayed was the District Court's Jan. 14 order permitting the webcast. The First Circuit was explicit that proceedings in the District Court could go on, only without the webcast. That's crystal clear from the last sentence of the First Circuit's order.

  4. before you both start nitpicking over minimal semantics:

    Can't the judge simply order his security staff to put an extra tape labeld "for the judge only" into the seucrity cameras, record the proceedings (like they probably would do anyway in the normal course of all day court proceeding security operations) and keep that tape with herself until the appeals court rules?

    That way, RIAA would have their ability to educate the world how hard they are hit by evil filesharers eventually later on and the proceedings could go forth just like planned?

  5. Alter_Fritz:

    This isn't about "nitpicking over minimal semantics"; there's a world of difference between staying the "proceedings" (what Beckerman said) and staying the "order" (what the First Circuit said). Under the former scenario, the case in the District Court must stop; under the latter, it may go on.

    As to your question: it's an interesting practical suggestion, but I don't think it's allowed by Local Rule 83.3. LR 83.3(b) does permit court reporters to make voice recordings "for the sole purpose of discharging their official duties," but it specifies that "No recording made for that purpose shall be used for any other purpose by any person."

  6. so you are saying these security officers that have the security cameras operating anyway are all criminals?

  7. I have no idea what "security officers" or "security cameras" you're talking about. I've never heard of security cameras operating in any federal courtrooms.

  8. are you saying "default" cameras for security (or whatever pruposes) are only installed in "non federal" courrooms and that means that this (*) is not in a federal courthouse then?

  9. That YouTube video was taken in a state courtroom. Cameras are common in state courts. Cameras are almost never permitted in federal courts.


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