Thursday, March 12, 2009

Tenenbaum, labels file supplemental appellate briefs on webcast issue; grapple with 1996 resolution hostile to cameras in courtrooms

The parties in the Joel Tenenbaum copyright case both filed supplemental briefs in the First Circuit today on the courtroom webcast issue, addressing a previously obscure 1996 First Circuit Judicial counsel resolution that appears to ban cameras in the courtroom. The existence of the 1996 resolution apparently eluded all the parties, their amici, and the District Court until the First Circuit itself dug it up and asked the parties to address it.

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.

(Full disclosure:  I signed on to the EFF's amicus brief in the First Circuit in support of the webcast.)

9 comments:

  1. "(Full disclosure: I signed on to the EFF's amicus brief in the First Circuit in support of the webcast."

    So, how is it that everybody, including you, missed the 1996 resolution but the first Circuit found it immediately?

    -Todd

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  2. To Anonymous:

    From what I've been able to determine, I think the answer is pretty simple: the 1996 resolution wasn't online -- not on Westlaw or Lexis, not on the First Circuit web site, nowhere else on the Internet. And apparently no one -- none of the parties, the amici, or Judge Gertner or her clerks -- thought to look in the actual paper files of the First Circuit Judicial Council.

    My best guess as to what happened is that once this case landed in the First Circuit's lap, one of the judges (perhaps a member of the Judicial Council) remembered the resolution and pulled it from his or her paper files. Take a look at the resolution (linked to above) -- it appears to be a scan of a document written on an old-fashioned typewriter.

    Does this excuse everyone missing it? Probably not, but it's understandable, given the common assumption that all citable, court-issued documents are online today. I guess we all learned that there remain exceptions.

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  3. "From what I've been able to determine, I think the answer is pretty simple: the 1996 resolution wasn't online -- not on Westlaw or Lexis, not on the First Circuit web site, nowhere else on the Internet. And apparently no one -- none of the parties, the amici, or Judge Gertner or her clerks -- thought to look in the actual paper files of the First Circuit Judicial Council."

    That makes me wonder how much that resolution has been relied upon, seeing as how almost nobody knew of it. I realize that may have no bearing on the issue at hand, though.

    Also, I suppose you can call Beckerman "anti-label" since "label" and "RIAA member label" are considered synonymous by some in common industry shorthand, but I think it would be more accurate to call Beckerman "anti-RIAA label" or "anti-RIAA." Beckerman supports non-RIAA labels, so I don't think the question is moot.

    Thanks,
    -Todd

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  4. I think the point is that Beckerman is so biased that he is unable to consider any possible legitimate reasons for taking this path. Thanks for pointing them out, Ben. Makes for a better understanding of what is going on in this funky case.

    Thanks,
    John (third year law student)

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  5. "I think the point is that Beckerman is so biased that he is unable to consider any possible legitimate reasons for taking this path. Thanks for pointing them out, Ben. Makes for a better understanding of what is going on in this funky case.

    Thanks,
    John (third year law student"

    Well, you can certainly make that claim, but no more so for Beckman than you can for the host of this blog. Both are outspoken advocates. Beckerman has shown a vigorous opposition to the claims of the RIAA and Mr. Sheffner has shown vigorous support, with the exception of the RIAA's stance on the internet dissemination of the upcoming hearing. However, Mr. Shefner's ardor for webcasting the the hearing seems to be rather lessened by the existence of the 1996 Judicial Council Resolution and doesn't seem to have re-iterated his support for the same. However, the 1996 Resolution was never disseminated to the public, hence the reason why nobody has heard of it, so it may be null and void as a matter of law.

    -Todd

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  6. My position on the webcast hasn't changed at all: I still support it, as I support televising (virtually) all court proceedings.

    There are (at least 2) separate questions here. First: is the webcast good as a matter of policy? I think (for reasons I've explained on this blog, and are expressed in the EFF brief I signed onto) the answer is clearly yes. Second: is the webcast permitted under court rules? Admittedly, I've focused much less on this second question, and my answer is less definitive. I do read Local Rule 83.3 as permitting the webcast. What I'm less sure about is the effect of the 1996 Judicial Council resolution. Is it binding on district courts? Or is it merely a kind of precatory "sense of the Judicial Council" statement? I haven't seen any authority that definitively settles that question.

    I think it's entirely possible for someone to come out: "I support the webcast as a matter of policy, but, unfortunately, it's not permitted under current rules." (Again, I'm not certain about the second part of that statement, but the 1996 resolution may mandate it.)

    "However, the 1996 Resolution was never disseminated to the public, hence the reason why nobody has heard of it, so it may be null and void as a matter of law." -- I simply don't know whether that's true. It may have been "disseminated to the public" at some point, or at least been made available to the public, but then forgotten (at least by those who don't sit on the First Circuit).

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  7. ""However, the 1996 Resolution was never disseminated to the public, hence the reason why nobody has heard of it, so it may be null and void as a matter of law." -- I simply don't know whether that's true. It may have been "disseminated to the public" at some point, or at least been made available to the public, but then forgotten (at least by those who don't sit on the First Circuit)."

    That isn't merely an assumption on my part, it is an averment by Tenenbaum. CVN took the trouble to ask if the 1996 resolution had been disseminated and were told by the Circuit Executive's Office of Information,"No." As an amici, I'd assume that would be of interest to you.

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  8. I think you're referring to this declaration:

    http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090313DeftsMemoLawExC.pdf

    But the declaration does *not* say that the CE's office said that the resolution was *not* disseminated. Rather, it says that the CVN attorney spoke with someone in the CE's office, who said she "could not find any record of the Resolution having been distributed to the public...." "I couldn't find a record of dissemination" isn't the same as "It was never disseminated." (And I'm sure we could have fascinating discussion of what "disseminated" or "distributed" actually means in this context.)

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  9. Indeed, you are correct. I mis-parsed the claim.

    Now I wonder where the burden of proof for dissemination / public comment period lies?

    ReplyDelete

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