Nascent Tecnologies and the Rule of Law: In re Sony BMG Music Entertainment

Author(s): Mark S. Hurwitz

Source: The Justice System Journal, Vol. 30, No. 3 (2009), pp. 347-350
Published by: Taylor & Francis, Ltd.
Stable URL: http://www.jstor.org/stable/27977468
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Legal Notes
Nascent Tecnologies and theRule of Law:
In re Sony BMG Music Entertainment
Mark

S. Hurwitz

broadcasting over the Internet, otherwise known as webcasting or narrow

If so, do the
casting, come within the legal purview of traditional broadcasting?
Does
on
courtroom
of
traditional
also
prohibitions
broadcasting
proceedings
apply to web
casting? These were key issues before the First Circuit when itwas faced with nascent
technologies and traditional rules on broadcasting judicial proceedings. The First
Circuit's decision stemmed from an action concerning the practice of sharing of elec
tronic files via peer-to-peer networks, where computer users download music, movies,
games, and the like free and which has become a critical issue for the entertainment
industry. One of the ways the industry has attempted to protect its intellectual prop
erty is by suing individuals who allegedly downloaded or disseminated electronic files
on such networks for copyright violation. While
inmost of these cases defendants

have settled out of court or defaulted, a few have proceeded to trial. In one consoli
a number of record compa
dated action in the federal district court ofMassachusetts,

nies brought suit against individual users for copyright infringement under Title 17 of
theUnited States Code, which codifies federal copyright law. One defendant who nei
ther settled nor defaulted made

a motion

to have a pretrial hearing in the case broad

cast over a secure Internet transmission. The district court granted defendant's

motion, Capitol Records v.Alaujan, 593 F.Supp.2d 319 (D.Mass. 2009), but the First
Circuit Court ofAppeals held instead that a local rule of the district court precluded
the judge from allowing a webcast of the hearing, In re Sony BMG Music Entertainment,
564 F.3d 1 (1st Cir., cert, denied by Tenenbaum v. Sony BMG Music Entertainment, 130
S.Ct. 126, 2009).1
Federal district court of Massachusetts

Local Rule 83.3, reproduced in part

a
is
the
below,
general proscription against
recording, photographing, and broadcasting
of court proceedings, with exceptions as permitted by the court:
(a) Recording and Broadcasting Prohibited. Except as specifically
provided in these rulesor
any
by order of the court, no person shall take any photograph, make any recording, or make
in the course of or in connection
broadcast
with any pro
by radio, television, or other means,
. .
in this court.
ceedings
1
While

the district court decision stated that this was an action for copyright infringement under 17 U.S.C.
? 106, the circuit court opinion declared that these infringement actions were brought under 17 U.S.C
? 501.
As discussed herein, the plaintiffs requested the court of appeals to issue a writ ofmandamus or prohibition of the
district court's order to allow the webcasting of certain proceedings in this case. The First Circuit granted the
plaintiffs' request, thus prohibiting enforcement of the district court's order. Due to the procedural nature of the
matter, the district court decision was not technically reversed by the First Circuit.

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348

The Justice System Journal

When confronted with a motion to allow Internet coverage of various proceed

in
the case, District Judge Nancy Gertner held that despite this local rule there
ings
was no reason to prohibit a webcast of a pretrial hearing in this case. Relying on the
that court proceedings should be public, the district court held that broad
the
casting
hearing over the Internet was permitted. In JudgeGertner's words:

doctrine

a new

in this case. The

claims and issues at stake
especially
and
The Defendants
digital copyright protections.
file-sharing practices,
are primarily members
of a generation
that has grown up with the Internet, who get their news
... Indeed, these cases
from it, rather than from the traditional forms of public communication
"Public"

today has

involve

the Internet,

resonance,

generated widespread
public attention, much of it on the Internet.
the particular
relief requested?"narrowcasting"
this proceeding

have

stances,

isuniquely appropriate2(CapitolRecords,at 323).

Under

these circum

to a public website?

This notion of a new public forumwas critical to the federal district court, as it
seemed to admonish the plaintiffs for their stance against the webcast of these pro
ceedings by labeling their objections "curious" (Capitol Records, at 321). That is, the
record companies acknowledged they hoped the publicity of these and similar proceed
ings would deter other users from illegally downloading copyrighted files, a view
according to JudgeGertner distinctly at odds with their position opposing the webcast
of these particular proceedings. Accordingly, the district court granted defendant's
to allow webcasting of the pretrial hearing.

motion

The First Circuit saw this case very differently. Circuit Judge Bruce Seyla wrote
the majority opinion on behalf of Circuit Judges Juan Torruella and Kermit Lipez.
Judge Seyla first discussed a jurisdictional issue before addressing the merits of the

The defendants petitioned the appellate court to issue a writ ofmandamus or

prohibition of the district court's order. The First Circuit held that ithad the jurisdic

motion.

tional power of advisory mandamus, since thiswas a case of first impression that con
tained an important issue likely to recur.

If thiswere a criminal proceeding no web

cast would be permitted, as Judge Seyla asserted the Federal Rules of Criminal
Procedure forbid any kind of broadcasting. The Federal Rules of Civil Procedure con
The

court then discussed

themerits.

tain no such prohibition, so the court embarked on a discussion of Local Rule 83.3 and
the district court judge's discretion regarding that rule in this case. Generally, the stan
dard of review in a case concerning the management of a courtroom is "abuse of dis
cretion but with a special degree of deference" (Sony BMG Music Entertainment, at 5,
quotingCrowley v. L.L. Bean, 361 F.3d 22, 25 [1stCir. 2004]). Not only did the district
court judge abuse her discretion, but her interpretation of Local Rule 83.3 was "palpa
bly incorrect" (Sony BMG Music Entertainment, at 5).
2
There is a technical difference between narrowcasting (restricted transmission over the Internet to a select audi
ence) and webcasting
(unrestricted transmission over the Internet to a general audience). While Courtroom
View Network proposed to narrowcast these proceedings to a secure Web site at Harvard Law School (the aca
demic home of the lawyer for the defendant bringing the instant motion), the proceedings were then to be web
cast over the Internet to a more general audience. While articulating this difference, the First Circuit
terms synonymously (Sony BMG Music Entenainment, at 2, fh. 1).

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used the

349

Legal Notes

83.3(a) begins by stating "Except as specifically provided in these

rules or by order of the court." District Judge Gertner broadly used this language to
order the webcast of the pretrial hearing. Instead, the First Circuit held that this "by
Local Rule

order of the court" language is limited to those circumstances specified in part (c) of
the rule, which concerns the preservation of evidence or investitive, ceremonial, or
naturalization proceedings. That is, the rule is not a general discretionary tool for the
judge to order broadcasting, but should be narrowly construed.
First Circuit held that its narrow interpretation of the local rule was sup
a
ported by policy edict of the United States Judicial Conference, which declares that
all broadcasts of judicial proceedings are inappropriate.
Following the Judicial
Conference's suggested ban on broadcasts?which
would
include webcast
presumably
ing?the First Circuit Judicial Council adopted a resolution prohibiting broadcasts of
The

civil proceedings within the district, providing further evidence that the local rule
should be narrowly interpreted. Thus, the First Circuit decided to "exercise our advi
sorymandamus authority [to] prohibit enforcement of the challenged order" ensuring
no broadcast on the Internet of the pretrial hearing (Sony BMG Music Entertainment,
at 9).
Interestingly, the tenor of the district court and First Circuit opinions in this
case could not be more different. In fact, the disparity between the perspectives of the
two levels of court in this case is similar to the classic case from New York of the
teenager who died while diving from a springboard into theHarlem River from defen
dant's property. In that case, New York Court of Appeals Justice Benjamin Cardozo
turned an ordinary trespass action, whereby the defendant was not responsible for

1919,
plaintiff's death, Hynes v.New YorkCentral Railroad Co., 188A.D. 178 (N.YA.D.
one
was
on
a
was
in
into
which
the
who
owed
Putnam, J.),
plaintiff,
public waterway,
a duty of care that was breached by the defendant whose land abutted the waterway,

Hynes, 231 N.Y. 229 (1921, Cardozo, J.). In the intermediate appeals court case, Judge
Putnam held the defendant not liable because the plaintiff improperly trespassed on
defendant's property. However, on appeal Justice Cardozo determined that the plain
tiffwas

entitled to recover, which

seemed obvious based on the first sentence of

reading of the facts:On

July9, 1916, Harvey Hynes, a lad of sixteen, swam
to the Bronx side of the Harlem River"
with two companions from the Manhattan
Cardozo's

(Hynes, at 231). The analogy between these cases nearly 100 years apart seems clear
enough, whereby one level of court proved farmore restrictive in its interpretation
than its counterpart in the hierarchy of justice.
the First Circuit was unambiguous in asserting that the local rule prohib
ited any form of broadcasting judicial proceedings. "[T]his is a society dedicated to the
rule of law; and ifa controlling rule, properly interpreted, closed federal courtrooms in
Here,

to webcasting and other forms of broadcasting ... we are bound to

enforce this rule" (Sony BMG Music Entertainment, at 9). Yet, despite this ostensible
clarity in the court's opinion, the First Circuit seemed to hedge a bit when it conclud

Massachusetts

ed: "We are also mindful that emerging technologies eventually may change the way

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350

The Justice System Journal

information about court cases?historically

information?including
BMG
Music
Entertainment, at 9).
imparted" (Sony
inwhich

has been

Indeed, this was precisely the position taken by Circuit Judge Lipez, who con
curred in a separate opinion by questioning the continued relevance of the local rule
while asserting the rule's clear prohibition of any kind of broadcasting in this case:
Local

The

Rule

matic

advances

These

new

lic access

at the center

technological
to the judicial

was

in 1990. Since
its adoption, dra
adopted
on our society.
a
had
have
effect
technology
profound
an
to
increase pub
opportunity
provide
unprecedented

of this controversy

in communications

capabilities
in appropriate

system

circumstances.

They

have

Local

Rule

also created

expec

tationsthat judgeswill respond sensiblyto theseopportunities.With itssweepingprohibition

on

the broadcasting

or recording

of district

court proceedings,

83.3

prevents

such

responses in civil cases. So too do thePolicyof the JudicialConference and theResolution of

the JudicialCouncil of theFirstCircuit thatunderlie theLocal Rule. As theoutcome of this
proceeding

demonstrates,

the Rule,

the Policy,

and

the Resolution

should

all be reexamined

at 11-12, J.Lipez concurring).

promptly(SonyBMG Musk Entertainment,
In a case surrounded by a circus-type atmosphere almost from the start, Judge Lipez's
exhortation stands out as a voice of reason, jsj

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