Nesson Webcast Motion Denied

The federal court of appeals recently overturned a motion by Harvard Law School professor Charles R. Nesson ’60 to allow what his staff says would have been the first Internet broadcast of a federal judicial proceeding to the general public in history.

The development came in the midst of a case that Nesson is defending on behalf of Joel Tenenbaum, a graduate student at Boston University who faces up to $1 million in damages after being sued by several prominent record labels in 2005 for allegedly downloading seven songs from a file-sharing Web site in high school. Nesson, working the case pro bono with a handful of his students, has seized on the case as an opportunity to campaign for openness and access, both on the Internet and in the courtroom.

In a representative effort to increase transparency, the Tenenbaum team motioned in December to broadcast a key courtroom hearing on the Internet.

“Every trial should be Web-cast so long as the judge deems it appropriate and beneficial for all parties involved,” said Tenenbaum.

“This decision will invariably have far-reaching consequence once it is resolved,” Tenenbaum added. “All subsequent attorneys seeking to either ban or allow Web-casting of their proceedings will inevitably cite the decision reached in this case, whatever that may be.”

According to Nesson, giving the public first-hand access to the case would have had immense educational value.

“Joel is being dragged into court by arbitrary authorities...If the public was aware of what the recording industry is doing to Joel and others like him, they would be outraged,” Nesson said. “I believe that this outrage would be expressed in the form of [seeking] change.”

In January, U.S. District Judge Nancy Gertner allowed the Tenenbaum team’s original motion to allow Internet in the courtroom. The record industry then appealed Gertner’s decision to the U.S. Court of Appeals for the First Circuit.

Last Thursday, the First Circuit Court of Appeals overrode Judge Gertner’s decision, despite admitting that there was indeed good reason to webcast the proceedings.

In reaching its decision, the court cited Local Rule 83.3, a Massachusetts law that prohibits recording and broadcasting court proceedings in District courts.

Though he acknowledged that the judges’ application of the rule to the Internet was “reasonable,” Nesson said that Gertner’s interpretation cannot be called “palpably erroneous,” as the appeals judges did.

Expressing disappointment in the judges’ ruling, D. Yvette Wohn, a Harvard Extension School student assisting Nesson with public relations, said the recording industry is stuck in an age where music came on a CD and could be expressly owned and sold.

“Broadcasting this case over the Internet is very relevant because it applies the Internet in a way that hasn’t been done before,” Wohn said. “By being denied the webcast, Joel is losing his constitutional right to a public trial.”

The Tenenbaum team will continue to pursue all available legal avenues and cannot yet view this reversal as a setback, said Nesson, who told the Boston Globe that he intended to appeal the Web-casting decision to the U.S. Supreme Court.

“We’re going forward with the same issues as we would have in January, except without the Internet,” he said.

Nesson said he will continue to pursue an open strategy so that the public can understand the recording industry’s actions and their implications.

“There’s a story here that in its way, in some ways, bigger than the case,” said Nesson. “And it’s the telling of this story that will get the problem fixed.”

—Staff Writer Helen X. Yang can be reached at hxyang@fas.harvard.edu.