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Digest Comment - In Camera Review: Public Access to Courts for the "Internet Generation": Public Trials Should Be Made Available Via Internet

Commentary Notes First Amendment

Editorial Policy

File-Sharing Cases in Courts Around the World
In February, the four men behind the popular file-sharing site The Pirate Bay went to trial in Stockholm, Sweden.  They stand accused of helping millions of Internet users illegally download protected movies, music, and computer games. The defendants - Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi, and Carl Lundström - face up to two years in prison and a fine of 1.2 million kronor (US $143,529) if convicted of being accessories and conspiracy to break Swedish copyright law.  The case has made headlines not only because of the substantive legal issues, but also because Defendant Peter Sunde, co-founder of The Pirate Bay, has called for the court's proceedings to be as open as possible. The Swedish court granted Sunde's motion to allow coverage of the proceedings without much resistance, and SVT, a public broadcaster in Sweden, has provided streaming audio webcasts webcasts of trial.

A similar situation is unfolding in the United States in a high-profile case involving issues very similar to those of The Pirate Bay case, although here there has been significant resistance for the defendant's calls to open the proceedings to the public.  Joel Tenenbaum is one of the tens of thousands of defendants being sued by the RIAA for allegedly violating their members' copyrights by distributing files through P2P file sharing software. However, unlike the vast majority of the defendants in these cases, he chose to litigate rather than settle his case rather than settle, with the help of Harvard Law School Professor Charles Nesson and a team of his students. With Professor Nesson's assistance, Tenenebaum filed a motion similar to Sunde's, requesting his trial be broadcast live via the Internet. Tenenbaum's motion asked the Court to exercise its discretion under the Court's local rules to allow Internet access to the courtroom by authorizing the Courtroom View Network ("CVN") to provide audio visual coverage of the proceedings in this case over the Internet.

Tenenbaum's Arguments for Internet Access
In the motion, Tenenbaum argues that Internet access to the litigation will allow lawyers, professors, students, and reporters to keep abreast of the most recent legal developments in the case.  Moreover, he argues a live stream over the Internet would provide an interested - and increasingly tech-savvy - public with access that will assist in educating the public about the issues involved in the RIAA's unprecedented litigation campaign.  This is arguably in line with the RIAA's litigation strategy, which was at least partially designed to educate the public about the legality of file sharing. Finally, Tenenbaum argues that granting access over the Internet is valid under Local Civil Rule 83.3, which permits proceedings to be recorded, photographed and broadcast "by order" of the Court. See D. Mass. Local Rule 83.3.

The only argument the RIAA provides in opposition is that Massachusetts U.S. District Court Judge Nancy Gertner has no authority under Local Civil Rule 83.3 to permit such an order.

Ultimately, Judge Gertner allowed web casting of a legal hearing in the Tenenbaum case.  In her ruling, she emphasized the unique relation of the Tenenbaum case to the Internet:

"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."

The RIAA immediately appealed the order. In its response, the RIAA reiterated what it had argued in its original opposition: that the proposed reading and broadcasting of the district court proceedings was barred by Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts.  The RIAA  also argued that the ban established by Local Rule 83.3 specifically tracked the Policy Statement adopted by the Judicial Conference of the United States regarding the recording and broadcasting of proceedings in the district courts.

The First Circuit has agreed to hear oral arguments on April 7th, 2009.

The Broader Debate over Electronic Access to Courtroom Proceedings
The question of whether to allow live-broadcasts of publicly available legal proceedings via the web is just the newest question in a long-running debate within the legal community on how to provide public access to the courts.  The traditional view of open public proceedings would limit access to those members of the public that can physically attend the court proceedings.  The debate has centered on whether this view should yield to the modern media's attempts to provide broader public access via new technologies.  The issue is hardly new, as for many years the issue of cameras in the courtroom has challenged long-standing norms of the judicial process.

Although courts vary widely - even within the same jurisdiction - in their tolerance of electronic recording and distribution of their proceedings, the trend is generally towards providing greater access.  For instance, New York courts have issued conflicting opinions on the issue, ruling that camera coverage of a criminal trial without a defendant's consent does not automatically warrant reversing the defendant's conviction, despite precedent requiring that cameras must be banned throughout a trial.  However, the law is clearer in other states.  For example, courts in Delaware, Ohio and New Jersey are already regularly webcasting their proceedings.  Moreover, the trend towards greater access seems to be accelerating.  In February 2009, the Minnesota Supreme Court ordered a pilot program be established to give electronic media access to court proceedings with a judge's approval.

Still, traditionalists remain resistant to changing the way in which court proceedings are reported, and this resistance may temper the adoption of broad electronic access to the judicial system.  The infamous O.J. Simpson murder trial gave critics an example of the potential downsides of televised trials, as critics argued that the cameras cheapened the proceedings and promoted posturing by lawyers.

Additionally, the United States Supreme Court notably prohibits televised coverage of its oral arguments. Recently Supreme Court Justice Scalia was asked why cameras are not allowed in the Supreme Court even though the court hearings are open, transcripts are available, and the Court's justices are open enough to discuss proceedings while ‘out on book tours.'  Justice Scalia said he originally favored televising Supreme Court proceedings when President Reagan appointed him in 1986.  Yet he said that over time, he has come to believe that "most people will only see 30-second takeouts" that would fail to give an accurate picture of the proceeding. Justice Scalia asked "why should I be a party to the miseducation of the American people?"

There is good reason to question Justice Scalia's argument. The release of audio-taped oral arguments from the Supreme Court, which started only a few years ago, has not caused any well-documented detrimental effect on our judicial system.  In fact, the audio recordings have helped Americans better comprehend the law, and provide a glimpse of legal practice on the nation's highest level.  As Ben Sheffner points out, if it's so dangerous to allow "30-second takeouts" to be shown, why allow newspaper reporters in the courtroom? After all, reporters do not reprint entire oral arguments verbatim; rather, they pick and choose snippets for their articles that we call "quotations" -- which are the print version of "takeouts." No doubt quotations or "takeouts" can "miseducate." As one of Scalia's predecessors once observed: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

Public Trials for the Twenty-First Century
In spite of the substantive legal distinctions between the Tenenbaum and The Pirate Bay cases, both involve an issue of great interest to a very large number people - the legality of file-sharing over the Internet.  The public's profound interest in this issue is obvious, primarily due to the vast numbers of Internet users that have used file-sharing services and the high-profile litigation over the last decade against both file-sharing services and individual users.  This high level of interest is reflected by the hundreds of news stories and blogs pieces written lawyers, scholars, and others about the Tenenbaum case.  Moreover, the issue of Internet access to the Tenenbaum proceedings has garnered support even from those who otherwise oppose Tenenbaum's alleged behavior.

The RIAA's opposition to webcasting the trial is particularly odd, since the organization has stated its goal with the litigation campaign is to educate the public and deter against further piracy. It seems the best way to broadcast this message to the appropriate audience (Internet users) would be allowing access to the case over the Internet.  If the RIAA is serious in wanting to spread awareness about the business and legal issues facing the music industry - and copyright in general - it should welcome any increased attention that Internet access might bring to the Tenenbaum case.

The First Circuit should follow the lead of the Swedish court in The Pirate Bay case and uphold Judge Gertner's decision allowing Internet access in the Tenenbaum case.  The fundamental right to a public trial should be brought into the digital age by making court proceedings available via the Internet.  Providing such access in the Tenenbaum case is critically important precisely because the legal issues involved are substantively about Internet use.  It is time to make "public" trials truly public by opening them up to the masses via the Internet.

*Ms. Rosenbaum is one of the students assisting Professor Charles Nesson on Joel Tenenbaum's Defense Team.