Judge delays hearing in file-sharing case

A federal judge has postponed a hearing in a high-profile music file-sharing case that would have been the first in federal court in Massachusetts to be streamed online.

Judge Nancy Gertner postponed oral arguments set for Jan. 22 in the copyright infringement lawsuit that pits a Boston University graduate student against the music recording industry. Proceedings will resume Feb. 24.

Gertner said the delay would give the First Circuit Court of Appeals time to resolve an extraordinary petition by the recording industry challenging how the court recording will be made and distributed.

The lawsuit is one of a series filed by the Recording Industry Association of America (RIAA) since 2003 against about 35,000 people who allegedly swapped songs online. Most of those sued are college students, and many have defaulted or settled for amounts between $3,000 and $10,000, often without legal counsel.

Charles Nesson, a Harvard professor representing BU student Joel Tenenbaum, is challenging the constitutionality of the lawsuits, which–based on the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999–can impose damages of $150,000 per willful act of infringement.

Nesson had asked Gertner to authorize video cameras already installed in courtrooms to be used to capture the proceedings and transmit the material to Harvard’s Berkman Center for the Internet and Society, which would then stream it on its web site for free.

Gertner approved the request last week and authorized New York-based Courtroom View Network, which has webcast state court trials, to "narrowcast" proceedings to the Berkman Center.

But the RIAA objected, contending that a webcast could be prejudicial and misleading because "the broadcast will be readily subject to editing and manipulation by any reasonable tech-savvy individual." The group said statements from the hearing might be taken out context.

Nesson took Tenenbaum’s case after a federal judge in Boston asked his office to represent the 24-year-old student, who was among dozens of people who appeared in court in recording industry trade group cases without legal help.

Tenenbaum is accused of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004. He offered to settle the case for $500, but music companies rejected that, ultimately demanding $12,000. He could be forced to pay $1 million if it is determined that his alleged actions were willful.

The RIAA has said in court documents that its efforts to enforce the copyright law are protected under the First Amendment.

In December, the group said it has abandoned its policy of suing people for sharing songs protected by copyright and instead will work with schools and internet service providers to cut abusers’ access if they ignore repeated warnings. (See "RIAA drops effort to sue song swappers.") The RIAA said it would still continue to litigate outstanding cases, however.


Recording Industry Association of America

Berkman Center for the Internet and Society