Mr. Justice Stephen Breyer
c/o Clerk of Court
Supreme Court of the United States
Washington, D.C. 20543
Dear Mr. Justice Breyer:
By an oversight I cannot explain, an earlier letter addressed to Mr. Justice Souter and delivered June 26, 2009, was not successfully filed and entered on the Supreme Court docket. Its substance, which is still timely, is reproduced below, but with the additional information pertinent to you that your son Michael is a principle in the company that would do the operational work of digital transmission if the request below were to be granted. Anticipating recusal, I ask if possible that our request be referred to the Chief Justice.
I am the Weld Professor of Law at Harvard Law School and founder of the Berkman Center for Internet & Society at Harvard University. I represent (pro bono) Joel Tennenbaum, a student being prosecuted by the RIAA for downloading and sharing music through a peer-to-peer network, Sony BMG Music Entertainment, et al., v. Joel Tenenbaum, consolidated to Capitol Records, Inc., et al. v. Noor Alaujan, No. 03-cv-11661-NG (D. Mass.).
On the defendant’s own behalf and on behalf of the digital public, Defendant Tenenbaum moved to establish public access through internet to gavel to gavel coverage of the public proceedings in the case, starting with pretrial proceedings. District Judge Gertner granted this motion with respect the public pretrial proceeding scheduled for January 24, 2009, involving argument of motions, and indicated that further requests pertaining to internet public access for later proceedings and trial would be entertained. The courtroom’s already installed equipment was to be used to capture and narrowcast the proceeding to the Berkman Center for Internet & Society at Harvard University, which would in turn serve it to and share it with open net. See Capitol Records, Inc., et al. v. Alaujan, 593 F.Supp.2d 319.
This plan was frustrated by an extraordinary writ of advisory mandamus issued by the First Circuit Court of Appeals barring Judge Gertner from allowing this public access to her courtroom. The First Circuit panel declared that Local Rule 83.3 of the District Court denied Judge Gerter any and all authority to allow digital recording in her court. See In re Sony BMG Entertainment, et al., 561 F.3d 1. A request for hearing en banc was denied on April 30, 2009. A petition for certiorari to the Supreme Court of the United States was filed on June 2, 2009 and is now pending, docketed as No. 08-1506.
The trial of this case is scheduled to begin July 27, 2009. Judge Gertner will abide by the First Circuit order of prohibition unless it is stayed or overturned.
To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. The issues in this case are of particular concern to the digital generation and to the future of the internet.
I respectfully request that either you or Chief Justice Roberts suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the full Supreme Court of our petition for certiorari.
Absent the requested suspension of the rule or stay of the trial, the petition for certiorari will be moot.
For these reasons, we respectfully seek your assistance.
Respectfully submitted,
Charles Nesson
Counsel for Petitioner Joel Tenenbaum
CERTIFICATE OF SERVICE
I, the undersigned counsel, hereby certify that on June 26, 2009, pursuant to Rule 29 of this Court, I caused the attached letter to be served on counsel of record for the Respondents in this action by United States Postal Service, first class, at the following addresses:
Daniel J. Cloherty
Victoria L. Steinberg
Dwyer & Collora LLP
600 Atlantic Avenue, 12th Floor
Boston, MA 02210
Eve G. Burton
Timothy M. Reynolds
Holme Roberts & Owen LLP
17 Lincoln, Suite 4100
Denver, CO 80203
__________________________
Charles Nesson
Counsel for the Petitioner