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RIAA Tries To Appeal Order Allowing Internet TV Court Broadcast
NewYorkCountryLawyer writes "The RIAA has appealed the order entered several days ago allowing the January 22nd hearing in SONY BMG Music v. Tenenbaum to be streamed over internet TV. Additionally, they've made a motion for a stay. I'm just a country lawyer, but as far as I know: (a) it's not possible to appeal the order, (b) it was procedurally improper and ineffective to file a notice of appeal, and (c) it was improper to direct their motion for a stay to the District Court Judge. Well, let's hope the arguments in the First Circuit will be streamed, too. Meanwhile, one commentator wonders why the tooth and nail opposition to broadcasting, since the professed aim of the litigations was to 'educate' the public?"
Well, sure, but not to educate the public *too* much.
Does this mean I don't have to TiVo Judge Judy anymore?!?!???
I can't wait for the RIAA to air out their ridiculous tactics and for the judge to laugh them right out of court. Would it be legal to record this and, say, put it on YouTube?
Those who anthropomorphize science and/or nature already believe in an intelligent designer.
Meanwhile, one commentator wonders why the tooth and nail opposition to broadcasting, since the professed aim of the litigations was to 'educate' the public?"
Because they mis-spoke when professing their aims. Or that they mis-spoke/typed/approved from paralegal when they filed this.
This whole ordeal is starting to feel like one of those theological arguments where a side insists on interpreting arbitrarily defined sections of text as immutable and others as requiring human context with themselves as the only interpreter. Interpretation may vary depending on the point they want to drill into peoples minds at the time.
Ice Cream has no bones.
since the professed aim of the litigations was to 'educate' the public?
The RIAA (and the MPAA) have a stated goal of educating the public about copyright law and the evils of infringement. However, the actual goal is to "re-educate" the public, much as our totalitarian friends around the world "re-educate" those who disagree with them. In the RIAA's case, this absolutely does not include informing the public about their sleazy, if not outright criminal courtroom behavior.
The higher the technology, the sharper that two-edged sword.
I am by no means defending this action, but ... come on, you wouldn't do the same thing? They've been getting away with everything in private for so long, why ruin a good thing?
If you're asking me whether I'm surprised they're resisting it, no I'm not. If I did what they do for a living, I'd be ashamed too. The last thing I would want is for the world -- including my friends and relatives -- to see what I do.
But it's not really possible for me to imagine myself in their shoes, because -- having been born of a human mother -- I would never be in their shoes and -- being a lawyer and a gentleman -- would never do the things they do.
Ray Beckerman +5 Insightful
Because, under the Federal Rules of Civil Procedure, and the United States Code, it's not an appealable order.
Ray Beckerman +5 Insightful
The point has never been to "educate" the public. The point has been to THREATEN the public.
What the RIAA is upset about is that people can download it for free. They don't want people pirating their court appearances!
So I take it you've never seen Matlock? ;)
*ducking*
My blog
What one says is not necessarily what one means. What one professes to do is not necessarily what one intends to do.
That is the credo of the modern world in which we live.
It is disgusting and dishonorable. But it is a fact of life. One that I've had to learn the hard way. I'm honest to a fault, but my "bullshit detectors" have been calibrated by dealing with this world in which we find ourselves. Many people (especially scientists) find this hard, since there are many wrong answers and only one right answer in many circumstances. At other times, there are no right answers, just some that are less incorrect.
And people wonder why I hate the world and would much rather deal with computers.
PC moderators can suck my White pierced, tattooed dick. If you think pride == hate, s/dick/Aryan meat mallet/g.
They went on to explain this was because the court refused to give fair payment to the artists/performers (lawyers) for the massive distribution of the video over the internet.
The MPAA and RIAA have been using their legal team to "educate" the same way that loan sharks use hired thugs to "educate" people about their outstanding debts.
Both the loan sharks and the **AA want their tactics and motives hidden. The message is intimidation.
I think anyone reading the post knows that those were my professional opinions. I specifically said "as far as I know". However, I think it is clear that my opinions were correct, as evidenced by the fact that they have not pursued their defective "appeal" but have instead filed a "petition for mandamus or prohibition" (they don't know enough to know whether it's 'mandamus' or 'prohibition'; in fact it's prohibition). (a) Under the Federal Rules it was not an appealable order; (b) it was procedurally improper and ineffective to file a notice of appeal, since the order was not appealable, and (c) it was improper to direct their motion for a stay to the District Court Judge, since it ought to have been directed to the appellate court, which is why the RIAA has now filed a motion for a stay in the appellate court.
I.e. even the RIAA lawyers have evidenced their awareness that all 3 statements were correct.
Ray Beckerman +5 Insightful
they want to educate the public, but don't want to be seen losing in court...
Donald 'Duck' Dunn: We had a band powerful enough to turn goat piss into gasoline.
Only on slashdot will the supporting anecdote be longer than the point it's supporting.
Just another "DOJ fascist authoritarian totalitarian bootlicker" -- Zeio
just charge people to view the court broadcast? That way, no persons involved can come back and sue the viewers who got free "entertainment".
Well, I'm not a lawyer but isn't it pretty much the modus operandi of lawyers who are paid insane amounts of money to toe the line in the interest of their clients?
If you ever want to know just how sleazy your "toe the line" lawyers can get, read this. It's an interview with a tobacco lobbyist. He's dying from cancer and decided to come clean on tactics. It's unreal.
So yeah, the RIAA lawyers being creatures of the same stripe, sure. Filing all this crazy stuff is absolutely par for the course. Remember - every single day the laws stay in their favor, that makes them money. If they file these motions and it takes a week or a month to sort through then they've done their job.
When you're dealing with a gigantic industry and millions of dollars every day, even a single five minute phone call to delay makes financial sense. Look at the SCO fiasco for another example. Baystar invested $50M in a dying lawsuit. Why? Delay. Every day there is any legal doubt over Linux is a day where spooked customers will go elsewhere. It was an investment, and one that has paid off many times over. These RIAA guys are just doing the same trick. Delay to keep the gravy train going.
Weaselmancer
rediculous.
Hi Ray. Do you think they're hoping that if they compile enough consecutive legal errors, then 13 wrongs will add up to a right and then they're hoping they'll win?
:)
No I think the lawyers are still in control and still trying to do anything they can think of that they can bill for.
Ray Beckerman +5 Insightful
Probably because it's in the best interests of their clients. Yes, public education is a stated goal of their campaign.. and these videos may have a benefit to that. But not by much - as these legal proceedings in and of themselves do not make for particularly compelling watching.
On the other hand, these videos would also assist defence lawyers arguing against the RIAA. There's also the potential for a 30-second sound byte of an RIAA spokesperson saying something stupid appearing on the 6 o'clock news. And the potential to pull short clips out of context (a la negative political ads).
On the whole, I think it's understandable but disappointing for the RIAA to be opposing this.
I am the maverick of Slashdot
NYCL gets all the pussy while you're stuck beating your shrivelled, uncircumsized needledick on weekends
What's wrong with being uncircumcised? ;)
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
As NYCL points out, you cannot appeal NONFINAL rulings of the trial court. Otherwise, people would be appealing EVERYTHING that happens in the trial courts, and the trial process would turn into an endless Dickensian jumble. A person has to wait until everything is over in the trial court before he or she can appeal. The RIAA didn't do that, so this "appeal" is doomed.
Right now, the RIAA's lawyers are looking stupid (even to themselves) and may be worried that their clients will be pissed at them for making such a silly procedural blunder. They'll seek to convert their appeal into an attempt at interlocutory review. The problem with interlocutory review is that it is EXTREMELY difficult to get (for the same reasons stated in the first paragraph). Very generally speaking, a person can only get interlocutory review if they can demonstrate that the trial court's decision was soooo bad that its consequence would screw up everything afterward. The appeals courts will bend over backward to uphold the trial court's use of its discretion. A motion for interlocutory review is a really bad in this case because it has virtually no chance of success.
This presents the really interesting question: Why is the RIAA acting so stupid? This appeal is a loser motion that will cost real money (and maybe elicit monetary sanctions) and will hurt the music company's public relations. Are the lawyers (not the client) making the decisions here? Is the client asleep at the wheel? Is the lawyer keeping the client in the loop so that the client can make informed decisions? Is the decisionmaker-client not any one person? Who is making the calls for the music company here?
Often rich ligitants seek to financially exhaust poor litigants by making tons of motions. That strategy doesn't make sense in this case, because Nesson's team is like the Borg. They'll eat that stuff up.
Generally, the strategic decisions are made by the clients and the tactical decisions are made by the lawyers. Maybe the lawyers reckoned that this is a tactical call that the lawyers get to make . . .
This is a high-order blunder by the RIAA. I'm just wondering why . . . .
The RIAA is, among other things, a joint venture formed by a bunch of music companies. The mandate of the RIAA, insofar as it is clearly expressed or understood, must be the product of negotiation and compromise and inertia.
Obviously they would contact the murder's ISP and submit a John Doe warrant based on the IP address. Case closed.
As NYCL points out, you cannot appeal NONFINAL rulings of the trial court. Otherwise, people would be appealing EVERYTHING that happens in the trial courts, and the trial process would turn into an endless Dickensian jumble. A person has to wait until everything is over in the trial court before he or she can appeal. The RIAA didn't do that, so this "appeal" is doomed. Right now, the RIAA's lawyers are looking stupid (even to themselves) and may be worried that their clients will be pissed at them for making such a silly procedural blunder. They'll seek to convert their appeal into an attempt at interlocutory review. The problem with interlocutory review is that it is EXTREMELY difficult to get (for the same reasons stated in the first paragraph). Very generally speaking, a person can only get interlocutory review if they can demonstrate that the trial court's decision was soooo bad that its consequence would screw up everything afterward. The appeals courts will bend over backward to uphold the trial court's use of its discretion. A motion for interlocutory review is a really bad in this case because it has virtually no chance of success. This presents the really interesting question: Why is the RIAA acting so stupid? This appeal is a loser motion that will cost real money (and maybe elicit monetary sanctions) and will hurt the music company's public relations. Are the lawyers (not the client) making the decisions here? Is the client asleep at the wheel? Is the lawyer keeping the client in the loop so that the client can make informed decisions? Is the decisionmaker-client not any one person? Who is making the calls for the music company here? Often rich ligitants seek to financially exhaust poor litigants by making tons of motions. That strategy doesn't make sense in this case, because Nesson's team is like the Borg. They'll eat that stuff up. Generally, the strategic decisions are made by the clients and the tactical decisions are made by the lawyers. Maybe the lawyers reckoned that this is a tactical call that the lawyers get to make . . . This is a high-order blunder by the RIAA. I'm just wondering why . . . . The RIAA is, among other things, a joint venture formed by a bunch of music companies. The mandate of the RIAA, insofar as it is clearly expressed or understood, must be the product of negotiation and compromise and inertia.
What they've done is abandon the "appeal" and file a writ of "mandamus or prohibition". (I.e. they couldn't make up their mind whether it was a writ of mandamus or a writ of prohibition, so they say "or". PS It looks to me like an application for a writ of prohibition.)
Ray Beckerman +5 Insightful
The text of the appeal is:
===
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
CAPITOL RECORDS, INC. et al., )
Plaintiffs, ) Civ. Act. No. 03-cv-11661-NG
) (LEAD DOCKET NUMBER)
v. )
)
NOOR ALAUJAN, )
Defendant. )
)
)
SONY BMG MUSIC ENTERTAINMENT )
et al., Plaintiffs, ) Civ. Act. No 07-cv-11446-NG
) (ORIGINAL DOCKET NUMBER)
v. )
)
JOEL TENENBAUM, )
)
Defendants. )
)
NOTICE OF APPEAL
Plaintiffs, Sony BMG Music Entertainment; Warner Brothers Records, Inc.; Atlantic
Recording Corporation; Arista Records, LLC; and UMG Recordings, Inc., hereby give notice of
their appeal to the United States Court of Appeals for the First Circuit from the Order dated
January 14, 2009, authorizing the broadcasting of certain proceedings in this case over the
internet.
===
This text they've submitted isn't especially informative. It contains no grounds for the appeal, no citations of rules or statutes, and no factual background. I would charactise this want of information in a pleading to a circuit Court as "uncommon".
To answer the questions as to "can they appeal an Order", one must reach into the bowels of civil procedure for Massachusetts, and the statutes governing the relationship between the Mass. court of the Order and the Circuit Court. I don't know these laws, but the general principle is that one may appeal (i.e. a request for review of, with a view to altering, the decision of a lower Court) only determinitive decisions-- i.e. those that end the case. The reason being that interlocutory (i.e. pre-emptive) appeals lead to all sorts of procedural nonsense, most heinously gross delay and ultimately undermining the exclusivity of the Court of first instance (i.e. where the proceeding was started) to make determinations in an expedient, coherent and effective manner. It also has a psychological and financial effect on non-institutional parties (i.e. humans), who are subject to litigation fatigue and often have limited legal resources that are, I would argue, most effectively used in a single concentrated hearing of the issues.
The rare exceptions to the rule against interlocutory appeals would tend to be based on some sort of gross unfairness. For example, you may be able to appeal an Order that is effectively determinative, even if it is not procedurally determinative (i.e. where time is of the essence, and the lower-Court's Order will render moot any ultimate decision). For example, if a Judge orders that sugar remain on a ship, but leaving the meat on the ship will cause it to spoil, an appeal Court may issue an Order to have the sugar stored someplace that will preserve it. The other case that comes to mind is the patent unfairness of bias, such as a biased Judge making non-determinative decisions that nevertheless effect prejudice.
This latter point (patent unfairness--not bias) would have application and merit, if the RIAA were able to show that a public viewing of this proceeding would give rise to prejudice or, alternatively, that it would cause incidental harm. I doubt the RIAA has the legal wits to bring up that argument, and even if they did it'd be difficult to reach the standard for showing (a) the Judge's Order was improper and (b) the harm to the RIAA is outweighted by the benefit to the public. An appeal Court does not generally have plenary jurisdiction, but only has a certain scope to review and change an Order of the Court of first instance. Changing a Judge's Order requires overcoming the presumption that the Judge was incorrect, with respect to either in a factual or legal conclusion. Again, without seeing the reasons of the RIAA, we can only speculate as to the basis for their appeal. They'd almost certainly need a gag order already in effect to get the circuit Court to reverse the Judge's Order to broadcast the proceeding.
I suspect, based on what I've read here, that the RIAA is using this "appeal" as a fishing trip to delay the proceedings, and to punish the defendant with legal costs
Sounds like you are looking for an explanation from Matt "The Dentist" Oppenheim, who directs the HRO team and local counsel. Based on his demeanor in the Joel Tenenbaum deposition in this case, he appears to have gone from just plain nasty to borderline obsessive.
If the "writ of mandamus or prohibition" ever gets decided on the merits, it will be denied. The RIAA tries to read Rule 83.3 (the rule that governs recordings and broadcasts of a case) in a way to which it is not susceptible. Specifically, ...
83.3(a) reads, "Except as specifically provided in these rules OR by order of the court ..."
Rule 83.3(c) reads, "The court may permit ..." followed by a list of certain types of proceedings.
The RIAA wants 83.3(c) to apply as a limitation to 83.3(a) "... by order of the court .." However, 83.3(c) is a rule, and as such it applies to 83.3(a) "specifically provided in these rules". For example, this rule permits a court to allow a recording of proceedings without the need to resort to an order.
Sorry folks, I have read too many SCO v. The World Court filings. The RIAA thinks just like SCO. Oh yes, SCO is now in bankruptcy.
Here is the Court filing:
http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf
Sounds like you are looking for an explanation from Matt "The Dentist" Oppenheim, who directs the HRO team and local counsel. Based on his demeanor in the Joel Tenenbaum deposition in this case, he appears to have gone from just plain nasty to borderline obsessive.
1. Are the two concepts mutually exclusive?
2. Why borderline?
Ray Beckerman +5 Insightful
If you are indeed human I think the most impor[t]ant work you can do is to prove that these other lawyers are highly evolved leeches that had absorbed human DNA.
If you want to make anti-lawyer jokes, well I can't stop you from that. But I must protest your attempt to insult leeches.
I have detected no signs of life, much less any human DNA, in my 'worthy opponents'.
Ray Beckerman +5 Insightful
What about the collateral order doctrine? See Lauro Lines s.r.l. v. Chasser, et al., 490 U.S. 495, 498 (1989). Granted, I think it will fail to meet the second prong of the test (the issue is too important to be denied review), but it is worth a shot if you really do not want this hearing broadcast.
And may god help you if I ever hear you dissing MY old profession .... military intelligence :-)
You were a professional oxymoron?
Hold on, someone's at my door...
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
It's useful to consider all of the RIAA's movements. They are trying to negotiate deals with ISPs where the ISPs police us and monitor copyrighted or non-sanctioned use of bandwidth. They are trying to get the federal government to bring lawsuits against downloaders for them on the taxpayer's dime.
This move, while costly in terms of money, will buy them time to finalize these deals. In a way, that means their political and philosophical opponents are winning, because they are realizing that artists are finding out that they don't need the big record labels to record, produce, and distribute music-- the entire core of the RIAA's business. Best to muddy the waters of downloaded music so that Apple/Amazon/etc. users are nailed for infringement they didn't commit, and thus kill off downloading as a legitimate means of obtaining music. They've already poisoned the minds of a bunch of judges to seriously threaten Internet radio; I have no doubt that they'll do the same to even more politicians and ISP execs.
In other words, they still haven't learned anything from the emergence of Internet commerce, and they will defend their (stolen) right to control the entire production chain of music to the bitter end.
"We are Microsoft. You shall be assimilated. Competition is futile."