After another crazy day, I have a chance to take a look at the Appeals Court's rejection of webcasting in the Tenenbaum case. (Read the decision here.)
It's not a far-reaching free-speech decision, despite Charles Nesson's efforts to make it so. It's not even a case on whether webcasting should be allowed as a matter of policy. It's a question of whether the local rule allows the judge to order webcasting, as she did. The court unanimously said it does not.
The district judge interpreted this rule as creating a discretionary catchall exception to the rule's general prohibition against the broadcasting of court proceedings. This interpretation would allow a district judge in an individual case to determine, as a matter of discretion, whether to permit the broadcasting of all or any part of the proceedings. That discretion would have no text-based restrictions. In that sense, it would be limitless.
The judge viewed one phrase in the rule -- "or by order of the court" -- as giving her the right to allow webcasting despite the district's ban on broadcasts. Pretty clearly, the court said, that phrase only applied to the procedure for allowing broadcasts for preserving evidence or for ceremonial/naturalization proceedings.
Similarly, Judicial Conference policy gives five narrow situations whereby the judge can order broadcasting.
OK, but is webcasting really broadcasting at all. Nesson argued it was not, since the broadcast rules were aimed at intermediary networks who were interested in hype and emotion, whereas the webcast would be a neutral, complete transmission.
Nonsense, the court said. If there's a difference, it's "one of degree, not kind."
Judge Lipez, though, concurred to make the point that the rule should be changed (no debate that the current rule is controlling).
In my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.
Check out this absurd distinction, the judge said. The First Circuit's oral arguments on this question were available immediately following the hearing. That's OK but a live webcast would be a violation of policy. That clearly makes no logical sense.
Yet this is how the law works. A law controls. It is out of date, but it still controls. Someone challenges the law, loses and yet the case begets a reconsideration of the policy. A new rule is born.
That is clearly what will happen in the First District. It's just a matter of time. In the meantime, though, a nation will be deprived of a first-hand look at the tactics of the RIAA.