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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."
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.
The reason why the RIAA is so strongly opposing the broadcast of the trial is, IMO, that the whole thing would instantly lose all its FUD quality. First, they just might lose, and the chances are not SO bad. Now imagine this getting out. The message: Don't get cowed down, their accusations are phony anyway, stand up in court and win.
Even if they win, a lot of lawyers are decent people (NYCL being an example) who would immediately identify their tactics, blog about it, comment the video/audio recordings and would instantly show that the emperor has no clothes, or rather, that they won just because the judge doesn't even understand what they're presiding over. Not good for the judge, but even worse for the whole judical system, which would be shown as unable to sensibly judge cases where copyright touches online distribution of content. And while this would probably be a good thing for us all, we just might get more judges that know their stuff, I doubt the judges would like to trade their cushy chairs for the hard ones associated with studying.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
I blame the Flying Spaghetti Monster. His noodley appendages have a way of getting into everything.
I think I saw that on a hentai once.
Is a court required to resolve all issues raised by amici?
No but when it's a First Amendment, freedom of the press, public's right to know, issue, raised by most of the nation's major press organizations, and incorporated by reference in the defendant's brief, yes the Court must resolve the issue, not ignore it.
Ray Beckerman +5 Insightful