Judge Delays Hearing (And Its Webcast) In Downloading Case

by Wendy Davis, Jan 22, 2009, 7:45 AM

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A judge in Boston has delayed a hearing in a file-sharing case to give the record industry time to appeal her pioneering ruling authorizing a Webcast.

The hearing, previously scheduled for today, has been put off until Feb. 24. "Postponing the hearing will allow the First Circuit an opportunity to fully consider the petition before it," U.S. Federal Court Judge Nancy Gertner wrote in the case, a copyright infringement lawsuit against grad student Joel Tenenbaum.

On Wednesday, the First Circuit ordered Tenenbaum's lawyers, and any outside parties who want to intervene, to file written arguments by Jan. 29.

The postponement came less than one week after Gertner authorized the Courtroom View Network to Webcast proceedings in the lawsuit.

Tenenbaum's attorneys had sought the Webcast, arguing that streaming the hearing would allow the public to effectively attend the trial. The record industry opposed the request on the grounds that the publicity could prejudice a potential jury pool.

Gertner last week discounted the RIAA's arguments, noting that the organization repeatedly said it sued non-commercial file swappers in order to generate publicity that would dissuade others from sharing music. Her order authorized the Harvard's Berkman Center for Internet and Society to host the streams.

Late last week, the RIAA filed an emergency appeal with the First Circuit, arguing that the Webcast could harm its case with the public because people might re-edit the streams in misleading ways. The record industry also argued that local court rules prohibit cameras or recording devices in courtrooms except in limited circumstances.

In addition, the RIAA objected to the portion of Gertner's ruling that allows the Berkman Center--founded by Tenenbaum's lawyer, professor Charles Nesson--to host the Webcast. "In the name of 'public interest,' the district court has directed the general public to a Web site replete with propaganda," the RIAA argued.

In her order postponing the hearing, Gertner noted that she had not excluded other sites from also posting the Webcast. "The Plaintiffs are also free to subscribe to the CVN (Courtroom View Network) recording and to make it available to the public at a Web site of their choosing," she wrote.

The RIAA recently said it would stop suing non-commercial file-sharers, but is continuing to litigate cases in progress, including the lawsuit against Tenenbaum.

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