Keeping Justice Opaque: RIAA Wants Private Hearing

• by Wendy Davis , Staff Writer @wendyndavis, January 20, 2009

The record industry is winding down its litigation campaign against file-sharers, but the few cases that remain could still influence online media for years to come.

In one lawsuit under way in Boston, the most heated issue this week concerns whether to allow a Webcast of the proceedings. Federal district court judge Nancy Gertner authorized the Courtroom View Network to Webcast at least a hearing scheduled for Thursday. Harvard's Berkman Center, founded by the defendant's lawyer, Charles Nesson, agreed to host the Webcast.

But the Recording Industry Association of America filed an emergency appeal, arguing that a Webcast of court proceedings could prejudice it with the public. The organization contends that users might re-edit clips of court proceedings in a way that distorts the group's positions.

Even if the group is right and someone, somewhere, re-edits the Webcast to mock the RIAA, that's not a valid reason to ban the Internet from the courtroom. If RIAA feels it's being portrayed inaccurately, the group's remedy is to address that with the truth; if the group thinks clips have been taken out of context, it can post the video in its entirety on its own Web site.

Consider the wide array of events that are Webcast -- everything from Obama's inaugural speech this morning to Senate hearings to sports events -- despite the possibility that users might create misleading remixes. If lawmakers and celebrities are subject to mashups, why not lawyers in a case that's of enormous public interest?

Of course, the RIAA has made clear it doesn't like publicity about these cases -- except when it originates with them. In one recent case, the group asked a judge to deem defense lawyer Ray Beckerman "vexatious" for posting publicly available court documents at his blog, Recording Industry vs. The People.

But the RIAA's fear of publicity shouldn't determine whether this case is broadcast online. Courts are presumptively open to the public, but practical considerations make it impossible for all but a few dozen people to watch hearings live. That's why Gertner's order last week, authorizing the Webcast, made sense. If it's upheld, it could pave the way for far more court proceedings to be available for public viewing -- as they should be. The First Circuit should now uphold Gertner's ruling.