Boston University graduate student Joel Tenenbaum’s seemingly never-ending date with the Recording Industry Association of America ‘-‘- court date, that is ‘-‘- showed no sign that it would end this semester.
The case has become stuck on an initiative by Tenenbaum and his team of lawyers to get a key hearing in Sony BMG v. Tenenbaum streamed live on the Internet.
Harvard Law professor Charles Nesson, who is Tenenbaum’s lawyer, filed a petition Monday morning protesting the United States First Circuit Court of Appeals’ April 16 decision to deny the webcast. The petition also asks for a rehearing of the arguments for all of the First Circuit judges.
Nesson also requested a stay of a hearing scheduled for Thursday.
‘Joel has a right as a defendant to a public trial,’ Nesson said.
Sony BMG is suing Tenenbaum for $1 million for allegedly illegally downloading seven songs in 2003. Sony BMG first filed its lawsuit against Tenenbaum in August 2007, after Tenenbaum refused to settle out of court.
Tenenbaum has been charged with violating an amendment to the Copyright Act of 1976, which allows violators to be prosecuted for statutory damages ranging from $750 to $150,000 per infringement.
Tenenbaum then filed a countersuit asserting that the statute in the Copyright Act that allowed Sony BMG to pursue damages beyond profits they lost was unconstitutional.
RIAA spokeswoman Cara Duckworth said the kind of alleged illegal activity in which Tenenbaum has engaged has severely harmed the music community. The RIAA represents more than 1,600 distributors, most notably EMI, Sony BMG, Universal Music Group and Warner Music Group.
‘This case is about a Harvard professor’s crusade to gut the laws that help protect creators and his attempt to transform a courtroom into what some observers have called a ‘three-ring circus,” Duckworth said in an email. ‘Professor Nesson has resisted our efforts to resolve this case in a manner fair to both sides.’ He wants a crusade, not a resolution.’
The hearing that Tenenbaum and his team wanted streamed on the Internet, previously scheduled for April 30, will decide whether Tenenbaum can pursue his counterclaim. Harvard Law student Matt C. Sanchez, who is working on the case with Nesson, said they have moved to add the RIAA as a defendant to the counterclaim.
‘The court will hear a large number of issues,’ Sanchez said. ‘One of the bigger ones is our claim against the RIAA.’
In January, U.S. District Court Judge Nancy Gertner ruled that she would allow Courtroom View Network to stream a key hearing on Harvard University’s Berkman Center for Internet and Society’s website.
The RIAA filed a petition a week after Gertner’s ruling that objected to the webcast because it ‘undermines basic principles of fairness,’ according to court documents. The court then granted a month’s stay so the First Circuit could review the petition.
Gertner delayed the hearing again in February after the U.S. Court of Appeals for the First Circuit asked Tenenbaum and Sony BMG to comment on a 1996 Judicial Council of the First Circuit order that prohibits the ‘taking of photographs, and radio and television coverage of proceedings in the United States district courts within the circuit.’
The First Circuit first heard the arguments for and against allowing Courtroom View Network to stream the hearing live on April 8.
Eight days later, the First Circuit overturned Gertner’s decision to stream the hearing online.
The court said in an official document that when Gertner agreed to stream the hearing, she made a ‘palpably incorrect’ interpretation of Massachusetts Local Rule 83.3. The rule states that ‘. . . no person shall take any photograph, make any recording, or make any broadcast by radio, television or other means, in the course of or in connection with any proceedings in this court.’
Nesson filed the petition protesting the ruling after an expedited request sent last week to the First Circuit for a consideration to amend Local Rule 83.3 was denied, according to a press release on the Joel Fights Back website, a page run by Tenenbaum’s legal team tracking developments in the case.
The request asked that the rule be changed to permit a district court judge to exercise his or her discretion.
‘Under our understanding [of the laws], we believe that the district court bench is empowered to make its own rule and to defer the required period of notice and comment in cases of immediate need,’ Nesson wrote in his email request to Chief Judge Mark Wolf.
In Wolf’s email response he said ‘the District Court has decided not to take any action on the expedited basis that you request.’
At press time, no decision had yet been reached on the Monday petition Nesson filed.
The Department of Justice intervened in the case in March, filing a ‘friend of the court’ memorandum. It did so ‘because many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct,’ according to the memorandum.
Nesson said he is unsure of where this landmark case will go in the future.
‘We just don’t know,’ he said.