RIAA Seeks to Block Streaming Video of Piracy Case

A federal appeals court in Boston has agreed to hear a motion filed by the Recording Industry Association of America (RIAA) that seeks to prevent courtroom proceedings in a music piracy case from being streamed live on the Internet .

In an order issued Wednesday, a three-judge panel at the First Circuit Court of Appeals noted the public interest in the piracy case and the "substantial and novel questions" raised by the prospect of live streaming. The judges called on both the RIAA and the defense to submit legal arguments on the streaming issue in an expedited fashion. The court will then decide if any oral arguments are needed to "facilitate the decisional process," the order noted.

The RIAA is asking the appeals court to overturn a Jan. 14 ruling by U.S. District Judge Nancy Gertner that authorized live video streaming of an upcoming hearing in the piracy case, which involves several music labels and a 25-year old Boston University doctoral student named Joel Tenenbaum .

Tenenbaum is accused by the RIAA of illegally downloading and distributing hundreds of songs over a peer-to-peer network, although the trade group's lawsuit only lists seven of the songs. The lawsuit was filed in August 2007, but it shot into the public limelight last fall, when Harvard University law professor Charles Nesson began representing Tenenbaum in the case.

In October, Nesson filed a counterclaim challenging both the constitutionality of the federal Digital Theft Deterrence and Copyright Damages Improvement Act and the RIAA's attempted use of that law against Tenenbaum. Nesson also challenged the appropriateness of the massive fines - ranging from $750 to $150,000 per willful infringement - that are available to the music labels under the statute.

Gertner's live-streaming ruling related to a hearing on the counterclaim that originally was scheduled for Thursday in U.S. District Court in Boston. However, the hearing was postponed until Feb. 24 after the RIAA said that it planned to appeal the judge's ruling, which authorized the Courtroom View Network to send a live video of the proceedings to Harvard University's Berkman Center for Internet & Society. The center, in turn, would make the video stream available to the public on its Web site.

Nesson asked Gertner to allow the hearing to be streamed, claiming it would allow a broader Internet audience "to see what's at stake and just how out of proportion the [RIAA's] response is to the supposed infraction."

But in its appeal of the streaming order, the RIAA called Gertner's decision "wrong on its face" and "troubling in its application." The trade group said the fact that the video stream would be distributed by the Berkman Center, which Nesson co-founded, was unfair and prejudicial to the music labels. Such an arrangement "undermines basic principles of fairness and is flatly inconsistent with the public interest," the RIAA said in its motion to the appeals court.

The trade group also took issue with the whole idea of streaming a court hearing on the Internet. "Unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum," the RIAA said. It added that although Gertner's ruling mandates gavel to gavel coverage of the hearing, the feed could easily be edited, "spliced together" and re-broadcast in such a way that comments and legal arguments would be "taken out of context."

Gertner also erred in authorizing the broadcast because it was in violation of the district court's own local rules, which forbid such broadcasts, the RIAA claimed. At a minimum, the trade group said, Gertner should have consulted with the full panel of judges at the district court before authorizing the video transmission.

In a statement, Nesson questioned the RIAA's appeal and said the Berkman Center was "working hard" to ensure that it didn't remain the exclusive distributer of the courtroom video feed. "We welcome the RIAA's help in finding additional Web sites through which the proceedings can be viewed," he said.

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