Courtroom Streaming Attracts Supreme Attention

The U.S. Supreme Court has temporarily blocked streaming from a U.S. 9th District Court of Appeals case (more on that later), but this news is just the latest development surrounding the often-controversial use of video in high-profile court cases.

Over the years, videoconferencing has created a niche vertical within the legal system. Used at first for depositions, then broadened to video visitation, videoconferencing is most often used in arraignments to avoid moving prisoners from the jailhouse to the courthouse for assignment of council or misdemeanor charges.

An example of this is the City Court and 14th Judicial District Court in Lake Charles, Louisiana, which, as of last year, had used videoconferencing to increase its arraignments from approximately 8 to more than 30 per week, primarily by eliminating the need to transport prisoners to and from the courthouse or requiring judges and minute clerks to travel to the jail.

Videoconferencing is seldom used, however, as a way to send out a broadcast signal, or even as a closed-circuit system within the same building, given the cost to implement endpoints.

Streaming has been used for this purpose for several years, starting first as a replacement for intra-court closed-circuit. Sonic Foundry created a telejustice solution about six years ago that synchronized witness video with real-time transcripts as part of Courtroom Connect's Virtual Law Viewer system. Yet even this system, which could be accessed via a secure online viewer, was meant as a proprietary service for law firms and not for general dissemination.

Fast forward to early 2009, and the case of Joel Tenenbaum, who was accused by the Recording Industry Association of America (RIAA) of downloading pirated music.

Tenenbaum, in a case that he ultimately lost—to the tune of $22,500 per song—and is now appealing, was charged with downloading and sharing 30 songs on the Kazaa file sharing network. As only the second defendant against the RIAA to go to trial, Tenenbaum attracted the interest of Harvard Law professor Charles Nesson and his CyberOne law class.

The most interesting aspect of the case, from a courtroom streaming perspective, was the judge's granting of Nesson's request to stream parts of the courtroom proceedings.

Federal Judge Nancy Gertner granted a one-time request to stream the proceedings on the internet, provided it was for non-commercial use.

The RIAA objected, and the judge only allowed streaming of the initial January 22, 2009, hearing. While it is unclear whether her decision not to stream the whole trial was based on it being a hindrance to courtroom proceedings, she noted that the RIAA's objections to streaming ran counter to the RIAA's argument to spread the word about the penalties for file sharing.

"[The Plaintiffs] objections are curious," Judge Gertner wrote of her decision to allow the initial streaming request and the RIAA's objection to it. "At previous hearings and status conferences, the Plaintiffs [RIAA] have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation."

Which brings us to the most recent discussion of streaming in the courtroom, where significant attention has been focused on a decision in the U.S. 9th Circuit Court of Appeals.

U.S. District Judge Vaughn Walker, citing the precedent of previous TV coverage of civil trials within the 9th Circuit, issued a decision that allowed on-demand court proceeding to be posted on YouTube each day.

His decision, however, has been challenged by the group defending the passing of California's Proposition 8, on the grounds that streaming could lead to witness harassment and intimidation.

The U.S. Supreme Court was asked to intervene, and on Monday it issued an unsigned ruling temporarily blocking streaming video coverage.

Falling in line with previously mentioned uses of video within the courtroom, with the exception of televised trials, the Supreme Court justices said streaming would only be allowed "to other rooms within the confines of the courthouse in which the trial is to be held."

Justice Stephen Breyer dissented, and the injunction is temporary, ending on Wednesday. Breyer stated that those seeking to block video streaming did not show how allowing it would cause "irreparable harm" meaning that the temporary injunction will invariably lead to further deliberation on the matter of streaming in the courtroom.

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