In re Sony Bmg Music Entertainment

• Decision Date: 16 April 2009
• Docket Number: No. 09-1090.,09-1090.
• Citation: 564 F.3d 1
• Parties: In re SONY BMG MUSIC ENTERTAINMENT et al., Petitioners.
• Court: U.S. Court of Appeals — First Circuit

564 F.3d 1

In re SONY BMG MUSIC ENTERTAINMENT et al., Petitioners.

No. 09-1090.

United States Court of Appeals, First Circuit.

Heard April 8, 2009.

Decided April 16, 2009.

Daniel J. Cloherty, with whom Victoria L. Steinberg, Dwyer & Collora, LLP, Eve G. Burton, Timothy M. Reynolds, Laurie J. Rust, and Holme Roberts & Owen, LLP were on brief, for petitioners.

Charles R. Nesson, for respondent Joel Tenenbaum.

Jonathan Sherman, with whom Dean Kawamoto, Melissa Felder, and Boies, Schiller & Flexner LLP were on brief, for Courtroom View Network, amicus curiae.

Matthew H. Feinberg, Feinberg & Kamholtz, Cindy Cohn, and Kurt Opsahl on brief, for Electric Frontier Foundation, Public.Resource.Org, Inc., Media Access Project, Internet Archive, Free Press, California First Amendment Coalition, and Ben Sheffner, amici curiae.

Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

This mandamus proceeding requires us to address a question of first impression: does a federal district judge have the authority to permit gavel-to-gavel webcasting of a hearing in a civil case?¹ The district court thought that it had that authority. Capitol Records, Inc. v. Alaujan, 593 F.Supp.2d 319, 324-25 (D.Mass.2009). After careful consideration, we hold that a local rule, applicable in this case, when read in conjunction with an announced policy of the Judicial Conference of the United States and a resolution of the First Circuit Judicial Council, precludes such an action. Accordingly, we forbid enforcement of the challenged order and remand for proceedings consistent with this opinion.

I. BACKGROUND

Both the underlying case and the challenged order implicate nascent technologies. To furnish context to the latter, we sketch the factual background of the former.

Some time ago, certain record companies began to file infringement actions under the Copyright Act, 17 U.S.C. § 501, alleging that individual defendants (many of whom were students) had illegally used file-sharing software to download and disseminate copyrighted songs without paying royalties. This proceeding arises out of a consolidated set of such lawsuits. In those cases, an array of record companies, including the petitioners here—Sony BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records, LLC, and UMG Recordings, Inc.—sued a number of individuals as putative copyright infringers.

On December 23, 2008, the respondent, Joel Tenenbaum (one of the persons whom the record companies had sued), moved to permit Courtroom View Network to webcast a non-evidentiary motions hearing that was scheduled for January 22, 2009. The district court, citing the keen public interest in the litigation, granted the motion over the objection of the record company plaintiffs. Capitol Records, 593 F.Supp.2d at 324-25.

The petitioners reacted to this order by asking this court to grant a writ of mandamus or prohibition. They argued, among other things, that (with certain exceptions not applicable here) Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts prohibited webcasts of civil proceedings. As a supporting argument, they noted that a stated policy of the Judicial Conference of the United States advocated a ban on the use of recording devices in federal courtrooms (other than for the preservation of trial evidence and the like). We invited the respondent to reply to the petition, accepted amicus briefs,² and assigned the matter for oral argument.

In a cooperative spirit, the district court stayed its narrowcasting order pending this court's review. The motions hearing is currently scheduled to take place on April 30, 2009.

II. APPELLATE JURISDICTION

We ordinarily do not entertain arguments raised by amici and not by parties.³ See Lane v. First Nat'l Bank, 871 F.2d 166, 175 (1st Cir.1989). Here, however, that precept does not apply. When an issue relates to subject-matter jurisdiction, we are duty bound to address the issue even if the parties have eschewed it. See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 5 (1st Cir.2007). As we explain below, this is such a case.

The issue is this: some of the amici contend that narrowcasting (and, thus, the challenged order) does not threaten the petitioners with any irreparable harm. On that basis, they posit that relief in the nature of a prerogative writ is unavailable. See, e.g., In re United States, 426 F.3d 1, 5 (1st Cir.2005) (explaining that supervisory mandamus is traditionally available where judicial power has been exceeded, there is a threat of irreparable harm, and the underlying order is palpably erroneous); United States v. Horn, 29 F.3d 754, 769 (1st Cir.1994) (same). Because this argument is couched in jurisdictional terms, we must confront it.

Having reached the issue, we can dispatch it with ease. The jurisdictional argument, whatever its provenance, is without merit.

This case does not involve our general mandamus jurisdiction but, rather, fits within the contours of our advisory mandamus jurisdiction. Under that rubric, we may entertain a petition that "presents a systemically important issue as to which this court has not yet spoken." In re Atlantic Pipe Corp., 304 F.3d 135, 140 (1st Cir.2002) (citing In re Prov. Journal Co., 293 F.3d 1, 9 (1st Cir.2002)).⁴ The power of a district court to order narrowcasting of a hearing in a civil case is such an issue: it is systemically important and rife with implications for the public interest. In the absence of definitive guidance from this court, the issue is increasingly likely to recur within the district courts of this circuit. These circumstances counsel in favor of an exercise of our advisory mandamus jurisdiction. See, e.g., In re Sterling-Suarez, 306 F.3d 1170, 1172 (1st Cir.2002).

In making this determination, we are cognizant that prerogative writs are strong medicine and, as such, should be dispensed sparingly. In re Pearson, 990 F.2d 653, 656 (1st Cir.1993). But even while subscribing to that tenet, we believe that this is an appropriate case in which to consider granting the writ. 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.

Our conclusion that this case falls within the compass of advisory mandamus answers the jurisdictional question. When advisory mandamus is in play, a demonstration of irreparable harm is unnecessary. In re Sterling-Suarez, 306 F.3d at 1172. It follows inexorably that we have jurisdiction over this petition.

III. ANALYSIS

Our task here is limited to the use of webcasts in federal civil proceedings. All forms of broadcasting are expressly proscribed in federal criminal cases, see Fed.R.Crim.P. 53, but that prohibition does not apply here.

In order to determine whether webcasts of civil proceedings are permissible in a federal district court, the logical starting point is the district court's local rules. Here, there is a controlling rule: Local Rule 83.3 of the United States District Court for the District of Massachusetts. The text of that rule is reprinted in Appendix A.

In the court below, the district judge interpreted this rule as creating a discretionary catchall exception to the rule's general prohibition against the broadcasting of court proceedings. This interpretation would allow a district judge in an individual case to determine, as a matter of discretion, whether to permit the broadcasting of all or any part of the proceedings. That discretion would have no text-based restrictions. In that sense, it would be limitless.

The district judge in this case made exactly that kind of ad hoc, case-specific determination. The petitioners vigorously contest the expansive construction of the rule that underlies this free-flowing discretion.

We are reluctant to interfere with a district judge's interpretation of a rule of her court, especially one that involves courtroom management. See, e.g., Sánchez-Figueroa v. Banco Popular, 527 F.3d 209, 213 (1st Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1328, ___ L.Ed.2d ___ (2009). Our standard of review reflects this deferential approach: the "application of a district court's local rule[s] is reviewed for abuse of discretion" but with "a special degree of deference." Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004).

Be that as it may, deference cannot be equated with a total abdication of an appellate court's responsibility to undertake a meaningful review of a lower court decision. Here, we think that the limits of the district judge's discretion were exceeded; her interpretation of Local Rule 83.3 is unprecedented and, in our view, palpably incorrect.

To begin, the district court's interpretation of the local rule renders subsection (c) of that rule wholly superfluous. If, as the court's discussion suggests, a district judge has wide-ranging discretion to permit civil proceedings to be broadcast, there would be no reason for the inclusion of a proviso which, like subsection (c), states that the court may permit broadcasting in certain enumerated instances (e.g., during ceremonial proceedings, for the preservation of evidence, for perpetuation of a record). It is a familiar canon of construction that every word and phrase in a statute or rule should, if possible, be given effect. See, e.g., Aguilar v. United States ICE, 510 F.3d 1, 10 (1st Cir.2007); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.1985). We think that canon has great force here.

The respondent's principal riposte is that a narrower interpretation of Rule 83.3, one that effectively limits a district judge's discretion to a few enumerated types of occurrences, adds words to the rule. This argument rests on the premise that if the drafters intended to restrict the broadcasting of...