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The District Court's Decision To Allow Gavel-To-Gavel Webcast in a File-Sharing Lawsuit

has just been reversed by the First Circuit in In re Sony BMG Music Entertainment. The court relies chiefly on the text of a District of Massachusetts local rule, but also suggests that the Judicial Conference's policy for federal courts likewise cuts against such webcasting. And though the policies involved bar "televising," the court concludes that

The difference between televising and webcasting is one of degree rather than kind. Both are broadcast mediums. The absence of a specific reference to webcasting is not telling; both at the time when the policy was promulgated and at the time when the resolution was adopted, Internet webcasting had not attained the ubiquity that currently prevails. What is more significant is that the intention of both the Judicial Conference, and the circuit council is transparently clear. That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.

The court also rejects the argument that there's a First Amendment right to have proceedings webcast:

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

This is no surprise, since that has been the view of the federal courts on the subject for quite some time.

Careful students of the First Circuit will be able to guess who wrote the opinion when I tell them that the opinion uses the words "impuissant," "perscrutation," and "sockdolager." Going through the Google results for "perscrutation" reveals only 324 items (as usual, including some junk pages), though I'm sure there will be more soon.

Oren:
Very disappointing, although it seems that the rules do in fact preclude the order.
4.16.2009 6:33pm
Oren:
Ray Beckerman can't make heads or tails of it ...
4.16.2009 6:44pm
New Pseudonym:
It has always seemed to me that this sort of thing (including Supreme Court rules) do not recognize technology changes and deny the parties their right to a public trial. If there is sufficient cause to issue a protective order, that is a different matter.
4.16.2009 7:16pm
krs:
Beckerman's post is a bit odd. I'd never heard of "advisory mandamus" before, either, but despite Beckerman's protests, it looks like (from a quick WL search) Wright &Miller and nearly every court of appeals believe that it does, in fact, exist. And Selya cited cases to support his discussion of advisory mandamus.

Lots of courts cite to a Harvard Law Review note called "Supervisory and Advisory Mandamus Under the All Writs Act," 86 Harv L Rev. 595 (1973). Wright &Miller explain it at V. 16, section 3934. It seems like an obscure doctrine, but I think it's odd for him to simply assert that "there is no such thing as 'advisory mandamus.'"

Also, his point about whether the First Amendment is implicated seems largely semantic...

That said, it seems odd for the First Circuit to enforce a district court's local rules against it and to support its reasoning with what appears to be nonbinding "resolution"-type materials.

Very interesting case. Thanks for sharing.
4.16.2009 7:17pm
Eric Jablow (mail):
Was the word sockdolager a reference to the last speech Abraham Lincoln heard before he was shot on April 14, 1865? From Our American Cousin:

"Well, I guess I know enough to turn you inside out, old gal, you sockdologizing old man-trap!"

Would the opinion have used that word if it had been released next week?
4.16.2009 7:28pm
PeterWimsey (mail):
It has always seemed to me that this sort of thing (including Supreme Court rules) do not recognize technology changes and deny the parties their right to a public trial. If there is sufficient cause to issue a protective order, that is a different matter.


This doesn't make a lot of sense to me. The court *recognized* the new technology; it simply found that the reasons underlying the ban of the new technology also applied to the new technology.

As the court said:

That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.


This seems a reasonable interpretation to me - while there are a lot of technical differences between webcasting and broadcasting, the rationale for the court's rule doesn't relate to these differences - i.e., the point of the rule doesn't have anything to do with commercial television of use of the airwaves or use of the internet. It has to do with showing the proceedings inside the court outside the court, and webcasting does this just the same as broadcasting does.

Similarly, if a court banned making a telephone call by cellphone in the courtroom (for, say, the protection of witnesses), the ban should also apply to someone who uses an iPod Touch to make a VOIP call from within the courtroom.





First of all, if the technology is new
4.16.2009 8:48pm
Ray Beckerman (mail) (www):
If no statute expressly authorizes it, and the US Supreme Court has not expressly authorized it, then I stand by my position that it doesn't exist. Mandamus is a distinct prerogative writ, and this is not it, as the Court recognized. And the US Supreme Court has expressly held that the judicial power of a federal court is limited to deciding cases, and may not be used in an advisory manner.

If however someone can point me to a statute that expressly authorizes it, or to a US Supreme Court decision that expressly authorizes it, then I will withdraw my statement.
4.17.2009 12:04am
Ray Beckerman (mail) (www):
As to the constitutional issues, the Court simply ignored them. The defendant had raised the First Amendment and his constitutional right to a public trial. Instead of resolving those issues the Court said they were not present. That was incorrect. The court ought to have given those issues some respect instead of saying they were not present. Certainly so if it had the time to devote so much energy to its elaborate tortured analysis of what was meant by the phrase "or by court order", a phrase which had a plain meaning upon its face.
4.17.2009 12:09am
MLS:
Perhpas Mr. Tenebaum's defense team will now get back to actually trying the case before the court on its merits and cease its transparent attempts to turn the case into a media circus and quasi moot court proceeding.
4.17.2009 12:49am
Oren:
MLS, I don't see how trying the case on its merits and webcasting it cannot both be done concurrently. They seem rather compatible.
4.17.2009 11:57am
MLS:

I don't see how trying the case on its merits and webcasting it cannot both be done concurrently. They seem rather compatible.


They are not inherently incompatible. My comment was merely to note that the defense team has been engaged in all sorts of questionable activity in trying to turn the trial into a pulic referendum on the subject of statutory damages. Seriously, a brief posted on the internet for comment and contribution in a manner akin to wikepedia? Disclosure of emails (including one from Mr. Lessig concerning jury nullification) and other internal discussions withing the defense team that might (not will...just might) operate to prejudice AC and WP priviliges. A letter prepared by defense counsel noting that the defendant had downloaded music from the internet via P2P. Etc.

In layman terms, it almost appears as if defense counsel has conceded the merits of the case brought by the plaintiff, and is pursuing a plan of attack on the constitutionality of statutory damages on a number or grounds that I am of the opinion border on specious. I will admit that "proportionality" as mandated in matters of punitive damages may have merit, but have as yet to read a single filing, either by counsel or amici, presenting a compelling case that in the matter of proportionality statutory damages = punitive damages.

Do I believe that statutory damages as applied in individual cases may be unfair? Of course I do. But I also believe that the proper venue for addressing this potential unfairness lies within the Halls of Congress, and not within the judiciary.
4.17.2009 12:28pm
Oren:


Do I believe that statutory damages as applied in individual cases may be unfair? Of course I do. But I also believe that the proper venue for addressing this potential unfairness lies within the Halls of Congress, and not within the judiciary.

I'm not sure Congress has the power to create outrageous statutory damages far in excess of actual losses. Of course, it's an undecided question, and I'm not convinced either way, but the way you state it seems like you've concluded that Congress can mandate any sum whatsoever without regard to real damages.
4.17.2009 2:47pm
Ray Beckerman (mail) (www):
Oren says:


I'm not sure Congress has the power to create outrageous statutory damages far in excess of actual losses. Of course, it's an undecided question, and I'm not convinced either way,


Actually, the DOJ and RIAA concede that Congress does not have that power and that the statutory damages are reviewable for excessiveness under a due process standard.

Where they and defendants part company are on:

1. whether the 1919 Williams test or the 2003 State Farm/Gore test is applicable; and

2. whether 2100 to 425,000 times the actual damages satisfies either test.
4.17.2009 3:13pm
MLS:

I'm not sure Congress has the power to create outrageous statutory damages far in excess of actual losses. Of course, it's an undecided question, and I'm not convinced either way, but the way you state it seems like you've concluded that Congress can mandate any sum whatsoever without regard to real damages.


Nor am I convinced either way, so suggesting I have arrived at a conclusion regarding Congressional power is not accurate. We do differ in at least one regard. You use the terms "actual damages" and "real damages". Yes, a song that is wrongfully downloaded may have been available for purchase for a very nominal sum, but for those who suggest this is a valid measure of damages sustained by a copyright holder I submit overlooks the other side of the damages equation; namely, what is the financial impact to the copyright holder by those who then turn around and place the unauthorized download into a "share" folder?
4.17.2009 5:07pm
Oren:
Ray, thanks for the response!


We do differ in at least one regard. You use the terms "actual damages" and "real damages" ... what is the financial impact to the copyright holder by those who then turn around and place the unauthorized download into a "share" folder?

I accept your definition. The question is what burden must the plaintiff reach in establishing the actual damages done by the totality* of the alleged acts of the defendant.

* The totality including downloading and then making available in a shared folder for others to download etc....
4.20.2009 1:34pm
Oren:
In case it wasn't clear, the majority of the previous post was directed at MLS, not Ray.
4.20.2009 1:37pm

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