The copyright lawsuits brought by record company plaintiffs to redress file-sharing have yielded many decisions of first impression. However, the recent ruling by the First Circuit in In re Sony BMG, Inc. (1st Cir. Apr. 16, 2009)  is one of the few that is of interest not just to copyright litigators, but scholars of appellate procedure as well. The ruling includes a discussion of the contours of federal court of appeals mandamus jurisdiction and the circumstances under which prerogative writs should be issued to the lower federal courts. A rarefied discussion indeed.

The court determined that the issuance of a prerogative writ to a lower federal court, a remedy which the appeals court itself described as "strong medicine," was justified by the nature of the issue before the court:

Both the rapidity of technological change and the widespread interest that this proceeding has attracted argue persuasively for a prompt and authoritative resolution of the systemically important issue that lies at the epicenter of this dispute.

What is this "systematically important issue"? Whether the lower federal courts have the authority to permit webcasting of judicial proceedings.

What the defendant, represented by Harvard Law Professor Charles Nesson, had proposed to do, was to "narrowcast" the hearings on pending motions in the case to a site at the Harvard Law School, and then subsequently webcast to a broader online audience. The plaintiff record companies objected, arguing that the stated policy of the Judicial Conference of the United States was opposed to the use of recording devices in federal courtrooms, and that this policy was embodied in the Local Rules for the U.S. District Court for the District of Massachusetts.

The appeals court agreed with the record complaint plaintiffs. The court ruled that the Judicial Conference policy, coupled with the implementation of the policy in the Local Rules, left the district court no discretion to permit broadcasting of any kind. The appeals court rejected the argument that webcasting could be permitted because neither the policy nor the rules explicitly prohibited Internet transmission, speaking only of "television" and "radio and television coverage." The court commented:

On close perscrutation, that contention comes to naught. The difference between televising and webcasting is one of degree rather than kind. Both are broadcast mediums. The absence of a specific reference to webcasting is not telling; both at the time when the policy was promulgated and at the time when the resolution was adopted, Internet webcasting had not attained the ubiquity that currently prevails. What is more significant is that the intention of both the Judicial Conference, and the circuit council is transparently clear. That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.

Judge Lipez concurred, reluctantly agreeing that the district court order was precluded by the Judicial Conference policy and the Local Rules. But he called for a reconsideration of the prohibition:

However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court’s decision. Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.

Judge Lipez pointed out that the circuit court itself makes audio recordings of oral arguments available on its Web site almost immediately after the proceedings take place. He commented that "there is no meaningful difference between the type of oral argument that we make available to the public as a matter of course and the type of argument that would have been broadly accessible under the district court’s Order." He also noted that the hearings were not a trial on the merits and therefore did not implicate the concerns of judges that the presence of cameras in the courtroom may change the nature of the trial process where there is a jury involved.