• by Wendy Davis  @wendyndavis, March 16, 2009

Earlier this year, U.S. District Judge Nancy Gertner in Boston made the groundbreaking decision to authorize the Webcast of a file-sharing trial. But unknown to Gertner and nearly everyone else, judges in the First Circuit--which includes Boston--had apparently issued a resolution banning cameras in the courtroom in 1996.

Now, lawyers in the file-sharing case are battling about whether that order--issued before consumers had home broadband access, let alone knew about peer-to-peer networks--should apply to the Internet.

Charles Nesson, the Harvard Law professor representing grad student and alleged file-sharer Joel Tenenbaum, says the answer is no.

"The resolution predated, and did not contemplate the advent of, the open Internet as a viable communications medium," Nesson wrote in papers filed last week with the First Circuit Court of Appeals.

The resolution specifically bans "the taking of photographs and radio and television coverage." Nesson says the resolution shouldn't apply to the Web, because the Internet is fundamentally different from traditional media in that it "enables gavel-to-gavel coverage, free of intermediation by commercially interested media companies."

Because the Web enables the entire trial to be streamed, Webcasts would not have the same "distorting drawbacks associated with radio and television broadcasts," he argues.

Tenenbaum had asked for the Webcast, while the record industry opposed the request. Initially, the record industry argued that an Internet broadcast could prejudice the organization. Among other reasons, the labels argued that viewers might re-edit clips and distort their arguments.

Currently, the record industry's main argument is that the rules of court don't allow for video broadcasts.

Ben Sheffner, a lawyer who has represented entertainment companies--but who also supports Tenenbaum's request to Webcast the case--found Nesson's latest argument "potentially dangerous to the greater cause of press freedom."

He argues that extending laws about traditional media to the Web often protects online publications and journalists. For instance, some courts have ruled that reporter shield laws, which allow journalists to preserve the confidentiality of their sources, should be extended to the Web. "Tenenbaum's argument could, if adopted, create some very bad law," he said on his blog, Copyrights & Campaigns.

Procedurally, the case has become extremely convoluted. Gertner authorized the Webcast in January, and the Recording Industry Association of America filed an immediate appeal. Tenenbaum and the record labels, as well as the outside groups including the Electronic Frontier Foundation, submitted briefs to the First Circuit as part of that appeal.

After receiving all of the paperwork, the First Circuit Court of Appeals drew the attorneys' attention to the 1996 resolution and invited additional arguments.

Shortly afterwards, Gertner herself also asked the lawyers to address that issue--although it's not clear that she has the power to revisit the decision now that the First Circuit is considering it.

In separate papers filed late last week with Gertner, Tenenbaum's lawyer, argues that the resolution is not valid because the court didn't publicize it at the time, as per normal procedure.

Late last year, the RIAA said it would stop suing individuals who shared files, but that lawsuits already in the pipeline--like the high-profile Tenenbaum case--would continue.