With oral arguments set to begin this week in a copyright-infringement lawsuit that pits a Boston University graduate student against the music recording industry, the federal judge overseeing the case has authorized the use of live video streaming to make the proceedings public.
U.S. District Court Judge Nancy Gertner restricted the live online streaming to a Jan. 22 hearing, saying she will decide later whether to make other proceedings in the case, set for March 30 trial, available online.
The lawsuit is one of a series filed by the Recording Industry Association of America (RIAA) since 2003 against about 35,000 people who allegedly swapped songs online. Most of those sued are college students, and many have defaulted or settled for amounts between $3,000 and $10,000, often without legal counsel.
Charles Nesson, a Harvard University professor representing BU student Joel Tenenbaum, of Providence, R.I., is challenging the constitutionality of the lawsuits, which–based on the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999–can impose damages of $150,000 per willful act of infringement.
Nesson had asked Gertner to authorize video cameras already installed in courtrooms to be used to capture the proceedings and transmit the material to Harvard’s Berkman Center for the Internet and Society, which will then stream it on its web site for free. Gertner approved the request and authorized New York-based Courtroom View Network, which has webcast state court trials, to "narrowcast" proceedings to the Berkman Center.
Gertner said local district judges have the discretion under the guidelines of the policy-setting federal Judicial Conference to allow recording and broadcasting when it serves the public interest, particularly of legal arguments without the presence of witnesses and jurors in a case.
"The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these file-sharing lawsuits," Gertner said.
"The defendants are primarily members of a generation that has grown up with the internet, who get their news from it, rather than from the traditional forms of public communication, such as newspapers or television," she said.
She dismissed as "specious" the recording industry’s objections that publicity will influence potential jurors and said she has received assurances that the video stream will be unedited and available to all non-commercial users.
Gertner also said streaming court proceedings online will serve the recording industry’s stated objective of discouraging people from illegally sharing music online.
Nesson took Tenenbaum’s case after a federal judge in Boston asked his office to represent the 24-year-old student, who was among dozens of people who appeared in court in recording industry trade group cases without legal help.
Tenenbaum is accused of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004. He offered to settle the case for $500, but music companies rejected that, ultimately demanding $12,000. He could be forced to pay $1 million if it is determined that his alleged actions were willful.
The RIAA has said in court documents that its efforts to enforce the copyright law are protected under the First Amendment.
In December, the group said it has abandoned its policy of suing people for sharing songs protected by copyright and instead will work with schools and internet service providers to cut abusers’ access if they ignore repeated warnings. (See "RIAA drops effort to sue song swappers.") The RIAA said it would still continue to litigate outstanding cases, however.
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