USCA First Circuit, April 16, 2009

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  • Circuit court reverses lower court’s order which had allowed webcasting of peer-to-peer copyright infringement proceedings.

In this litigation, several copyright actions brought by record companies against individual downloaders were consolidated into one action. One of the individual defendants moved to allow Courtroom View Network to webcast a January, 2009, non-evidentiary motions hearing. Citing the great public interest in the litigation, the district court granted the motion to permit webcasting. In response to the district court’s order, the record companies petitioned the First Circuit for a writ of mandamus or prohibition. Due to the pending application, the district court stayed the January, 2009, hearing until the First Circuit ruled on the matter.

The First Circuit first considered whether it had the appropriate subject matter jurisdiction over the matter. The court rejected the contention that the petition arose out of its general mandamus jurisdiction, which would have required a showing of irreparable harm. Instead, it found that the circumstances surrounding the issue -- namely, its systemic importance and its likelihood of recurrence -- suggested that the case fell within the court’s advisory mandamus jurisdiction, which did not require a showing of irreparable harm.

Having concluded that jurisdiction was appropriate, the court turned to the issue at hand. The thrust of petitioners’ argument was that the district court’s order violated Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts, which addresses the parameters of courtroom broadcasting in that district’s courts. Based on the language “except . . . by order of the court” in subsection (a), which is titled “Recording and Broadcasting Prohibited,” the district court had held that Rule 83.3 included a catchall that allowed judges to make exceptions to the general prohibition against broadcasting of court proceedings.

The First Circuit found that this overly broad construction by the district court was belied by both the title of the subsection at issue and the rule’s structure. Additionally, it found that such an expansive reading would render section (c) of the Rule, which enumerated limited exceptions to the general prohibition, such as preservation of evidence or the perpetuation of records, superfluous. The fact that two other districts -- the Southern District of New York and the Eastern District of New York -- have allowed webcasting in civil courts was irrelevant, the First Circuit concluded, because neither district had a rule comparable to Rule 83.3.

The court also found support for a narrow interpretation of Rule 83.3 in a policy adopted by the Judicial Conference of the United States that stated that the Judicial Conference “remains of the view that it would not be appropriate to require . . . non-ceremonial proceedings to be subject to media broadcasting.” The court noted that such policy is not generally binding, but that fact did not diminish the court’s regard for and reliance on the policy. The court reasoned that this judicial stance was entitled to great weight. The fact that the First Circuit Judicial Council subsequently adopted a resolution in support of this Judicial Conference policy further supported the issuance of the writ. In reaching its conclusion, the court noted that its decision did not raise any Constitutional concerns and merely considered the appropriate interpretation of a local court rule.

Finally, the court found that the fact that Rule 83.3, the Judicial Conference policy and the First Circuit Judicial Council resolution do not specifically address the Internet as a prohibited type of broadcasting media did not change the result.