Judges Will Weigh Whether to ‘Admit the Internet Into the Courtroom’

The most visible defendant in the recording industry’s supposedly dwindling mass-lawsuit campaign may still get his day in court Webcast — just not next week, a federal appellate judge decided yesterday.

Joel Tenenbaum, backed by Harvard Law School, has become a poster child for opposition to the recording industry’s copyright-infringement litigation. A graduate student at Boston University, Mr. Tenenbaum was sued for illegally downloading seven copyrighted songs. Harvard’s Berkman Center for Internet & Society is fighting to stream his case online.

Last month a federal judge in Massachusetts, Nancy Gertner, ruled for a Webcast of a pre-trial hearing — filmed by the Courtroom View Network and carried gavel-to-gavel by the Berkman Center — but the recording industry appealed the decision to the U.S. Court of Appeals for the First Circuit. The Electronic Frontier Foundation and several news-media organizations filed briefs supporting the Webcast. Yesterday, the circuit court said it wanted to hear oral arguments on the Webcast question — in early April.

That decision may draw out the case even further, postponing the hearing originally set for mid-January and then rescheduled for late February. At the hearing, whenever it happens, Judge Gertner will consider Mr. Tenenbaum’s countersuit against the recording industry, which argues that its authority to sue him is unconstitutional.

Charles Nesson, a Harvard Law professor representing Mr. Tenenbaum, asked the U.S. District Court in Massachusetts to “admit the Internet into the courtroom” for the hearing because of “the potential learning value of this case to a broad audience.” Indeed, Mr. Nesson has found much learning value in the case, supervising several law students’ work on it and trying an experiment in crowdsourcing (or “collaborative lawyering”) for a motion to compel the deposition of a certain recording-industry lawyer.

One of Mr. Nesson’s students, Debbie Rosenbaum, said Mr. Tenenbaum’s team considers the Webcast critical. “We’re going to work really hard to have the First Circuit rule in our favor,” she said. “We believe that this is a really important right.”

The recording industry, however, opposes the Webcast, arguing that the district court lacks the authority to allow it and raising concerns about its influence on the case.

“We are for an open trial in an open courtroom,” Cara Duckworth, a spokesperson for the recording industry, said in an e-mail interview. “What we are against is the manipulation of the judicial process and using a court of law for legal theater and gamesmanship, which is the clear objective of the other side.” —Sara Lipka