Judge OKs Internet in P2P hearing

Great decision by U.S. District Court Judge Nancy Gertner in the recording industry case against Joel Tenenbaum, et al. The judge granted a motion by Harvard Law prof Charles Nesson and his students that next week's law and motion oral arguments be broadcast (technically, "narrowcast" to a Harvard site that will then relay the signal over the Internet).

Read the decision.

The order is limited to the Jan. 22 hearing, at which the judge will hear arguments on Tenenbaum's motions to amend counterclaims, opposition to plaintiff's motion to dismiss counterclaims, and a motion to join the RIAA. Especially because these are purely legal questions, with no evidence presented or witnesses testifying, the judge ruled that the hearing will be broadcast. Trial is set for March 30.

In many ways, this case is about the so-called Internet Generation -- the generation that has grown up with computer technology in general, and the internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the internet. Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the internet.

The judge found the plaintiffs' opposition to the motion "curious" because the RIAA's strategy has always been to use these cases to deter the vast majority of Internet users from illegal downloading. Since their strategy relies on publicity, why the opposition to the publicity of live streaming? Given the First Amendment's suggestion that court hearings be open "whenever practicable" (In re Zyprexa Products Liability Litigation) and the appropriateness of the medium "to the Internet Generation captivated by these file-sharing lawsuits," the Court held:

[I]t is fully appropriate to allow the public a wider window into the judicial proceeding at hand.

These days, "public" doesn't mean letting a few dozen people into a courtroom, or even merely allowing the press in to cut up the proceedings into sound bites.

“Public” today has a new resonance, especially in this case. The claims and issues at stake involve the internet, file-sharing practices, and digital copyright protections. 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. Indeed, these cases have generated widespread public attention, much of it on the internet. Under the circumstances, the particular relief requested -- “narrowcasting” this proceeding to a public website -- is uniquely appropriate.