Slashdot Mirror
Appeals Court Says RIAA Hearing Can't Be Streamed
NewYorkCountryLawyer writes "The US Court of Appeals for the First Circuit has overturned a lower court order permitting webcast of an oral argument in an RIAA case, SONY BMG Music Entertainment v. Tenenbaum, in Boston. As one commentator put it, the decision gives the RIAA permission to 'cower behind the same legal system they're using to pillory innocent people.' Ironically, the appeals court's own hearing had been webcast, via an mp3 file. The court admitted that this was not an appropriate case for a 'prerogative writ' of 'mandamus,' but claimed to have authority to issue a writ of 'advisory mandamus.' The opinion came as a bit of a surprise to me because the judges appeared, during the oral argument, to have a handle on the issues. The decision gave me no such impression. From where I sit, the decision was wrong in a number of respects, among them: (a) it contradicted the plain wording of the district court rule, (b) it ignored the First Amendment implications, and (c) there is no such thing as 'advisory' mandamus or 'advisory' anything — our federal courts are specifically precluded from giving advisory opinions."
Why do we keep trusting a dishonest Justice system. The system is rigged. There is no Justice in the Legal system none.
What a load of BS. If it was John Q. Public trying to allow censorship of his case they would have laughed, but I guess the RIAA can do as they please. One would hope that simply the fact they were trying to ban the stream would show their tactics are shady as can be. The irony of the webcast is classic as well.
The court admitted that this was not an appropriate case for a 'prerogative writ' of 'mandamus,' but claimed to have authority to issue a writ of 'advisory mandamus.'
And wtf does that mean if legalese is not my native language?
Since this decision does seem to be bogus, can Tenenbaum appeal?
Is there another court to appeal to before the next hearing?
Todos mis movimientos están friamente calculados
When does the federal government act restricted and within the bounds of the constitution?
I think I stumbled on Groklaw or something.
Wait for the bootleg, it'll be on all the torrents in no time
THE WORLD IS GOING TO END!!!! eventually.
If you are a Democrat, blame Bush. If you are a Republican, blame Obama. And if you are neither, blame Bill Gates. Personally, I blame the Flying Spaghetti Monster. His noodley appendages have a way of getting into everything.
A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".
http://en.wikipedia.org/wiki/Mandamus
Obviously. I mean, come on, it's a prerogative writs and stuff.
How we know is more important than what we know.
is an "advisory mandamus"???
Would not that constitute a court remanding a case, then advising how to rule?
Is there such thing as Amicus Curiae after the fact?
i'm sorry but as a fellow attorney (NY too!) i have to correct NYCLs analysis.
Advisory mandamus has its roots in the Supreme Court's reference to mandamus review of "basic, undecided question[s]." Schlagenhauf v. Holer, 379 U.S 104, 110 (1964); see Horn, 29 F.3d at 769; see also 16 Wright et al., supra, 3934. It is appropriately invoked when the action or inaction of the district court presents an issue of great importance and novelty, and one the resolution of which will likely aid other jurists, parties, and lawyers. See Horn, 29 F.3d at 769-70 (citing In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982), and In re Bushkin Assocs., Inc., 864 F.2d 241, 247 (1st Cir. 1989)).
To summarize : They are allowed to issue advisory mandamus in cases such as these.
I'll just download a pirated copy of the video. :D
/* No Comment */
From where I sit, the decision was wrong in a number of respects, among them: (a) it contradicted the plain wording of the district court rule, (b) it ignored the First Amendment implications, and (c) there is no such thing as 'advisory' mandamus or 'advisory' anything -- our federal courts are specifically precluded from giving advisory opinions.
So, in the words of my favorite attorney Lionell Hutz (sorry, but he's the only one I know that uses words I know), they made a bad court thingie?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
I don't want to sound like a dick or nothing, but my ruling would have to be that the court was 'tarded . . . they shouldn't worry though, plenty of 'tards out there are living really kick-ass lives.
Brought to you by Carls Jr. Fuck you . . . I'm eating!
I hate to go against the /. groupthink, but after listening to the MP3 of the hearing and reading the opinion myself, I have to agree with the appeals court's decision. Admittedly I can't speak to the advisory mandamus issue (I'll leave that to another poster), but a common-sense reading of rule 83.3 would suggest that the court's authority to allow broadcast is indeed limited; otherwise I would expect 83.3(c) to have been written something like "A party may petition the court to permit..." or just "It is permitted to...". Given that, and since Tenenbaum's side didn't argue any higher authority (except the right to a public trial, and as the judges stated, that's not being infringed any more than in any other trial), I have to agree that the decision is fair and reasonable.
Now, I certainly don't think this is a desirable outcome. But the purpose of the courts is to enforce the rules, and if they can't enforce their own rules, that doesn't give them much moral authority to enforce others, does it? What really ought to happen--as Judge Lipez says in his (her?) concurring opinion at the end of the PDF--is for the rule to be reexamined in light of Internet technology so this sort of problem doesn't reoccur.
There is no incentive to trust a system where lawyers get more and more control of the government despite civil society no desiring such an outcome. The lawyers "make law" in courtrooms. Civil elections don't mean a thing. Most Congress men and Senators are lawyers.
The law is written by layers for lawyers everyone else be damned. Win or lose the lawyer profit. "Justice" is rigged to advantage the lawyers the rest of society be damned.
http://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution#Public_trial
I would love to know what "higher values" are served by closing this trial like this, other than avoiding the irony of an RIAA incident getting spread across the Internet like a frickin' virus.
It seems like the precedent described in the link above is very clear on when you do and do not have a right to a pubic trial. This example of closure posted on /. seems to overstep these limits, I think.
A defendant under US law has a right to a public trial...except for when he suddenly doesn't!
Let q be a radix > 1. I am in ur base-q, killing 10 d00ds.
So you are studying law I guess.
I'll stay an AC.
"You got ad in my hominem!"
"Hey, you got your hominem in my ad!"
They need some undercover recording going on then. :D
How hard can it be to sneak in some recording devices?
because of copyright abuse (by copyright holders) than there are people in Gitmo.
Which would mean that this IS more important to people's freedom than Gitmo.
And killing people (the ostensible reason for Gitmo detainees) is worse than keeping money from artists (the ostensible reason for persuing copyright infringement).
That the people in Gitmo are generally innocent and the artist doesn't get a penny are irrelevant.
Then again, I wouldn't expect any different from you, cliff.
Insightful because "I agreed with NYCL and then asked a question that doesn't provide any insight?"
Equality != justice, unless everyone deserves the same. Otherwise why not punish the innocent along with the guilty?
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Like it or not, our legal system involves the use of facts and appeals to emotion. It's no secret how NYCL feels about what the RIAA is doing these days.
There is no such thing as "the Christian system" and moreover there is no widespread faction of Christianity that actually has this as a pivotal part of their theology. And even if they did, they still allow for people to be judged afterwards anyway. So hair splitting aside, GP was substantially right.
And then there are all those other factions. Mormons, Muslims, Jews, all of myriads of denominations. They can't all be right. Most people are going to hell. You might as well accept that you're going to roast, and enjoy your mortal life while you can.
Someone at the hearing should covertly record the trial and leak it. A courthouse is full of people who walk in and out with their notebooks, mobile phones, laptops, etc. Making a recording of the hearing must be terribly easy. The solution is so obvious; just smuggle it out of the country (can't be hard, after all it's just information) and publish it after it has made a few hops.
If my understanding is correct, it still is a public trial. Get on a plane and fly out and you can sit in, if they have room for you. They just blocked the mp3 streams because current law doesn't really allow it. The judge made the point that the law should be reexamined in light of new technology, but until then it is what it is.
The Goal: A long simple life filled with many complex toys.
There really is no excuse for not streaming and electronically archiving every court proceeding in this country. It's certainly less expensive than the method of archival used now and has the added benefit of making the information available to the masses. This is an issue that, to me, goes to the very heart of transparency in government.
Is there even a coherent argument against making courtroom activity available to the public so it can be freely observed? When an appellate court can step in and forbid the dissemination of the proceedings at the behest of a wealthy and powerful lobby group, how far away are we from secret trials and off-the-books detention and punishment?
the precedent described in the link above is very clear on when you do and do not have a right to a pubic trial.
Hopefully only when it's a trial about a sex offence. You shouldn't need to go into that much detail for anything else.
"You must be new here"
I feel the same.. The defendant is the one on trial. If the defendant is happy to have the proceedings broadcast, then let it be so. If the plaintiff or prosecution have a problem with it, let them withdraw their case.
I would love to know what "higher values" are served by closing this trial like this
The trial isn't closed. There is still a record, the courtroom is still open to members of the public, and both the trial and the result are covered by the media.
A closed proceeding is one in which access is restricted, no record is made or the record is entirely sealed, and the media has no access to any information on the matter. None of that is true here.
You vastly overstate the situation and egregiously misunderstand both the mechanics and the impact of this decision. We don't generally broadcast trials and never have. There are many reasons why we shouldn't. It is not as though all trials conducted in the past have been closed because no one has ever broadcast the entirety of the trial. I mean, really now. The very fact that you are reading and commenting on this story is proof that a public trial is ongoing.
(To the tune of a Prohibited Song)
We don't need Advisory Decisions;
We don't need no FUD Control;
No dark sarcasm in the courtrooms
Hey - Lawyers! Leave those kids alone!
All in all it's just another crack in the Law;
All in all you're just another target for Law.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Then they'd know who to pillory with mods.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Did they pay for the rights to the music they were so proud of playing 24 hours a day at high volume? "Public Performance!"
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
They couldn't hear all of the arguments because they had their iPods on ... ;)
Bark less. Wag more.
Issue rulings "just for this case". Heaven forbid it should ever establish a precedent.
I miss rule of law as a general principle.
The executive, legislative and now the judiciary branches are just making up new rules as they go along. No longer are they even attempting to "interpret" law and procedure. They are just ignoring law and are not being held to account for it. How can it be that we are unable to hold them to account for ignoring the law?
Federal judges serve for life and basically have no check or balance on their power, save a higher court, or a Constitutional amendment.
When a judge leaves the court it's usually because they can't or aren't going to be moving up. IE: district judge to appeals court to supreme court. At some point they cash in for their years of "service" and it's almost ALWAYS to go into the corporate world. The entertainment industry, both music and video, employ a shit ton of lawyers. It wouldn't surprise me if this judge ends up going to work for one of those in the not too distant future and didn't want to burn bridges.
The RIAA clearly feels they have something to hide here hence their fierce protest of the public being able to see the hearing.
Corporatism != Free Market
If they are not, you will be judged by an arbitrary set of rules that you (most likely) did not adhere unless you just happened to guess the right religion. In other words, you will be judged by laws that you did not know you are to uphold, probably laws you did not even know about and had no way of knowing. That's justice?
Well, there's other options you know. Such as Deism.
It may be that there is a mind far surpassing our own that will understand what it is we've done and why we've done it - a perfect Judge. I'd like that. Frank Herbert wrote, "Give me the judgment of balanced minds in preference to laws every time." I heartily agree with him.
The afterlife might be just that, if we're really lucky.
Weaselmancer
rediculous.
give us donation links to fight this shit.
and in addition, why arent you still running an organization to fight this thing ? or are you working for eff or any others ?
Read radical news here
If it's music and poetry you're after, then:
I am the very model of a modern-day solicitor,
The type that you'd display to an enquiring Martian visitor.
In all the courts of judicature I delight to play and sing
And I know everything there is to know about conveyancing.
In wills and probate I am versed, 'cos death is where the future lies,
And everything that humans do I'll presently computerize;
In that respect my hopes and dreams will scarcely need enlarging, for
There'll be no limit to the items I can then be charging for.
I rip you off and lose your deeds and spend your cash and lie to you
And if you write in to complain I doubt if I'll reply to you.
The simple I make complex till there's nothing clear and plain in it.
I write you yards of gibberish, then charge you for explaining it.
And though you sit in silence and observe your savings dwindle, you
Still give me full discretion both to fleece you and to swindle you.
And nervous children point at me and ask their mothers "Is it a
Foul monster from the Black Lagoon?" "No, dear, it's a solicitor"
But while our legal system's still a cesspit and a mockery
And England's not a garden but a weed-infested rockery;
And while we hold each problem must contain a germ of fault in it
And while we seek to heal a wound by rubbing loads of salt in it;
And while we're bound by precedents (that's cock-ups folk have made before)
And while the courts are all for sale and there's no justice, only law,
And while the graft and cheating in the system are implicit - ah!
There'll always be a living for the modern-day solicitor.
For trouble is my business; so, however things may run with you,
You know that they'll be ten times worse when finally I'm done with you.
Although you'd rather take your chances with the Grand Inquisitor,
You know that you're in trouble when you go to a solicitor.
Credit goes here
Todos mis movimientos están friamente calculados
Based upon a quick preliminary review of the law:
1. There is no US Supreme Court decision authorizing "advisory mandamus".
2. The Schlagenhauf case does not authorize "advisory mandamus".
3. There is no statute authorizing "advisory mandamus".
4. The First Circuit appears to be the 'hotbed' of "advisory mandamus".
If anyone has any information to the contrary I would love to see it.
This is kind of academic, since obviously the court would have been empowered to consider the order on a duly certified interlocutory appeal, but the RIAA trolls think I'm wrong, so they should be able to prove that I'm wrong.
Ray Beckerman +5 Insightful
I would just like to remove the term "RIAA trolls" from the previous comment. I had drafted the comment for my own blog, where an RIAA troll had been attacking my legal reasoning. I then copied and pasted it here. I realize that the term "RIAA trolls" was inappropriate here because I recognize that the Slashdotters who have been taking issue with me here are not of that ilk, they are lawyers who were presenting a contrary point of view.
I sincerely apologize for the inclusion of that term here; it was truly not intended.
Ray Beckerman +5 Insightful
lol nice find! I'm usually pretty good about typos. >_
I guess it's not surprising that that one slipped through.
Let q be a radix > 1. I am in ur base-q, killing 10 d00ds.
that muslims beleive even the vast majority of muslims will burn in hell. (in addition I suppose to all the non muslims)
It is believed that "heaven" is reserved for a very special elite few.
or so I have heard in any case (I am not necessarily an authority on the subject, so please do your own research to verify or refute the claims presented)