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."

Comments

Yay, we get Soviet Show Trials now in America

[ajsbsd.net]

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.

Re:Yay, we get Soviet Show Trials now in America

[ajsbsd.net]

The show trials reference was to "altered" trials in general. The Soviet show trials were engineered as disinformation campaigns, and were considered in their day to be of the highest priority to the FCD (First Chief Directorate). Would you not consider hiding a trial from mass public viewing a grave form of dis-information

Re:Yay, we get Soviet Show Trials now in America

[cliffski]

I love the way slashdot gets more upset about a trial over music and copyright as it does over guantanomo bay.
Hint:
Gitmo is bigger threat to your liberty than whether or not kids get to take music without paying.

Re:Yay, we get Soviet Show Trials now in America

[inviolet]

Gitmo is bigger threat to your liberty than whether or not kids get to take music without paying.

It is a threat to your liberty insofar as it is used against American citizens. So far it has not. Whether it will is an open question.

It is a boon to your liberty for reasons that caught me by surprise when it was first explained to me. My partner, who has done tours of duty in the middle east, explained that everyone in the world knows about Gitmo. Its mere existence persuades people to talk, even to help us.

There doesn't even have to be anybody there for it to achieve this effect. The bad press alone is what does it.

Its value as a deterrant and as an intelligence tool against people who are not in it is big, and could compete against your civic objections to it.

Re:Yay, we get Soviet Show Trials now in America

[russotto]

There doesn't even have to be anybody there for it [Guantanemo Bay] to achieve this effect. The bad press alone is what does it.

Its value as a deterrant and as an intelligence tool against people who are not in it is big, and could compete against your civic objections to it.

There's a word for using this sort of "deterrent". That word is "terrorism".

Can they appeal?

[Steve1952]

Since this decision does seem to be bogus, can Tenenbaum appeal?

Re:Can they appeal?

[jd]

I think that hinges on why the judges went from "understanding" to "not understanding". If it was because of behind-the-scenes pressure or incentives, then the answer would be no. Tenebaum couldn't win. There's not a whelk's chance in a supernova that anyone could out-bribe the RIAA, and the chances are extremely high they'd be caught, which would fry their chances of winning the "real" case.

If, on the other hand, it's because the judges never understood the legal issues in the first place, then yes. An appeal probably could win. Likewise if the judges deliberately sabotaged their ruling by making it illegal to follow. (One reason a judge might do that is if they are being pressured to render a judgement they disagree with but if they don't they'll be as screwed over as the defendant.)

If it's more that it's completely new territory and the judges are terrified of setting precedents (judges hate doing that), an appeal might go any which way.

Re:Can they appeal?

[Zurk]

yes, the district court must follow it. NYCLs analysis was essentially, trolling. I realize NYCL is popular here, but that does not make his reasoning correct.
NYCL stated : (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.

(a) is plainly incorrect because the opinion was from a higher court -- they do not need to follow the wording of a lower court - they can -- and do -- explicitly contradict it. hence the term "appeal" or "appeal to a higher power who can disagree with you if it so desires".
(b) is incorrect because there is no First Amendment implication to publish. The court is still allowing you to speak in front of it, you do not have any republication rights in the 1st amendment. its free speech not free license to republish for a mass audience. My reasoning would be similar if i were to judge this case - publishing a stream would risk the trial turning into a circus. You may disagree with this (as NYCL did) but it does not make the reasoning incorrect or invalid.
(c) is incorrect for all the reasons i have layed down in my later post. basically SCOTUS allows advisory mandamus rulings.

Re:Can they appeal?

[Quothz]

My reasoning would be similar if i were to judge this case - publishing a stream would risk the trial turning into a circus.

Thanks for the info on advisory mandamus-type writs. A little googlery backs you up totally.

I'm curious as to what you mean by this, however. I hear the phrase used from time to time, but I just can't seem to apply the metaphor to a civil court proceeding in my head. What, precisely, do you see as the negative implications of broadcast? I'm only able to see the advantage of greater transparency.

I also have trouble with the idea that this is an important enough issue to warrant an extraordinary writ. It doesn't seem fundamental to the integrity of the courts or even particularly novel (except, perhaps, in that the ruling was appealed at all).

Re:Can they appeal?

[mr_matticus]

I hear the phrase used from time to time, but I just can't seem to apply the metaphor to a civil court proceeding in my head. What, precisely, do you see as the negative implications of broadcast?

Interference on three grounds, for starters:

1. Media meddling, hounding, and general drowning out of what's actually happening. It's like televising the halftime team strategy meeting--it can't help the team do any better, it can only stir the pot in the audience, worsening the integrity of the event, inviting disruption and distraction in the courtroom, and resulting in the passage of bad information to the public. Look no further than the submitter's awful commentary on this administrative matter for the kind of undue influence exerted; they're willing to throw the baby out with the bathwater just because the party "benefiting" immediately happens to be a corrupt corporate regime, rather than looking at the whole picture.

2. Jury contamination. Extensive media coverage makes it nearly impossible for the jury to act based on the narrow parameters for which they are assembled; the kinds of journalistic advocacy composed outside the courtroom unfairly prejudice the jury's understanding as the case is fully presented to them in court. A good legal team knows the proper balance of what to present and what to handle outside of the jury's presence--and preliminary proceedings, stipulations, and rules of evidence are manifestly not followed by bloggers or even professional journalists.

3. Witness tampering. Witnesses are supposed to present their testimony as preserved by their role in the proceedings, outside the influence of the media. Detailed and verbatim recordings of proceedings, aired immediately, make it nearly impossible to rely on witness testimony. Witnesses not only have a general idea of how the trial is advancing, but have the specific opportunity to craft their testimony around earlier testimony that court procedures go to great lengths to keep away from witnesses.

You can go on from there into a whole litany of issues about advocacy, representation of clients, and so on.

I'm only able to see the advantage of greater transparency.

How does broadcasting the proceeding as it happens add to transparency, as opposed to making the record available after the fact, as is normal practice? It merely increases exposure, which is not itself a virtue. There's a reason that you don't publish drafts of scholarly works in most cases, unless you're circulating it for input. That's exactly the same reason you don't put out incomplete pieces of the trial.

It's really not a situation involving more or less transparency--it's about PR. The defendants want to stir the pot and have the case tried in the court of public opinion, where it's obvious they will win. The RIAA labels are about as unsympathetic as you get. It doesn't make the process any more fair, open, transparent, or accountable to broadcast trials. Any of those issues will appear in the transcripts and trial records, and if they're not in the transcript, they wouldn't be in the broadcast. It just makes the public shitstorm easier to build in any given case, and the courts are intentionally supposed to be insulated from that.

I also have trouble with the idea that this is an important enough issue to warrant an extraordinary writ.

There are few things more serious than the bounds of discretion of a trial court. The review and the opinion isn't about broadcasting the trial, it's about the judge's application of the rules of court. Failure to apply the law correctly is more or less the only reason for reversal in civil appeals.

or even particularly novel

Really? Do you know of any trials broadcasted live in their entirety?

It's incredibly rare; it's outright prohibited in criminal trials, and in most places, civilly, as well, subject t

Re:Can they appeal?

[NewYorkCountryLawyer]

by making a ruling that NYCL says isn't legally recognized and is explicitly only "advice", can the judge merely treat it like any "friend of the court" filing rather than a court ruling?

I did NOT say that the District Judge can treat it like a "friend of the court"; she is bound by it, even if it is wrong. I did not say the 1st Circuit's ruling "isn't legally recognized". I said I believe it is erroneous. It has the force of law unless and until it is overruled or reversed.

Re:Can they appeal?

[NewYorkCountryLawyer]

yes, the district court must follow it. NYCLs analysis was essentially, trolling. I realize NYCL is popular here, but that does not make his reasoning correct. NYCL stated : (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. (a) is plainly incorrect because the opinion was from a higher court -- they do not need to follow the wording of a lower court - they can -- and do -- explicitly contradict it. hence the term "appeal" or "appeal to a higher power who can disagree with you if it so desires". (b) is incorrect because there is no First Amendment implication to publish. The court is still allowing you to speak in front of it, you do not have any republication rights in the 1st amendment. its free speech not free license to republish for a mass audience. My reasoning would be similar if i were to judge this case - publishing a stream would risk the trial turning into a circus. You may disagree with this (as NYCL did) but it does not make the reasoning incorrect or invalid. (c) is incorrect for all the reasons i have layed down in my later post. basically SCOTUS allows advisory mandamus rulings.

1. The 1st Circuit exists under the law, and must follow the law.

2. The defendant raised his constitutional right to a public trial, and the First Amendment was raised by the amici; the Court had a responsibility to resolve those issues, not ignore them and say that they did not exist.

3. The US Supreme Court has not authorized "advisory mandamus". The case you cited is completely distinguishable. It dealt with the power of a court to decide an issue which had become mooted. It did not create or authorize a general "advisory mandamus" doctrine which freed the courts from the "cases or controversies" limitation on their powers, or which redefined the ancient writ of "mandamus", which has existed for around 600 years and has a well understood meaning.

The fact that I simplify things here for my non-lawyer friends does not make it "trolling".

Re:Can they appeal?

[NewYorkCountryLawyer]

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.

Re:No Justic in the legal system.

[gringofrijolero]

*In this life there is no justice, only law. In the afterlife there is justice.*

Don't remember who said it, and I probably mangled up bad enough to make it unrecognizable.

wait for the bootleg...

[pyrote]

Wait for the bootleg, it'll be on all the torrents in no time

Who to blame

[DrLudicrous]

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.

Re:Who to blame

[gwait]

You forgot the obligatory "Blame Canada" !

Re:Who to blame

[n3tcat]

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.

duh..

[QuantumG]

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.

Re:duh..

[Thanshin]

In law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction. In modern usage, this public body is generally a court. Warrants, prerogative writs, and subpoenas are types of writs, but there are many others.

http://en.wikipedia.org/wiki/Writ

They're clearly making stuff up as they go.

NYCL's analysis is just... wrong.

[Zurk]

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.

Re:NYCL's analysis is just... wrong.

[mr_matticus]

Correct. More to the point for laypeople, the prohibition on "advisory" opinions (rooted in the fact that American jurisprudence requires a "real case or controversy") extends only to the practice of providing opinions on issues not ripe for litigation or where there are no parties before the court asserting an injury/requesting relief.

This is an actual case, being litigated in a real court. It does not meet the requirements for the issuance of a writ of mandamus, which makes the question one that is likely to escape review. Issuing an "advisory" component for the purpose of assisting practitioners and courts likely to face the same question in the near future doesn't implicate the problem the advisory opinions rule was meant to prevent. Cf. Canada, whose Supreme Court can offer their advice before the fact when questioned by Parliament; US courts cannot respond in this same way to Congress.

In short, the rule prevents the courts from expending resources on hypotheticals--not on elaborating its own procedures and authority in an issue within an actual case that might otherwise evade direct review.

It's a question of courtroom discretion, not one couched in the facts of a specific set of copyright infringement actions. The irreparable bias of the summary writer is highly problematic here; no professional judge or attorney would approach this question with such hamfisted incredulity. The legal questions here are administrative, not based on the parties. Anti-RIAA sentiment has no place contaminating the entire subject here.

The local court rule as written does not grant such broad authority to the judge; the appellate court was correct. Courtroom proceedings are not normally permitted to be broadcast while they are occurring, subject to limited exceptions in local rules. The risks of prejudicial effect are entirely too high. No applicable exception was referenced by the trial court, and therefore the general ban on broadcasting must be upheld.

Re:NYCL's analysis is just... wrong.

[NewYorkCountryLawyer]

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'm now aware the 1st circuit has this line of cases. The question is whether a statute expressly authorizes it, or whether the US Supreme Court expressly authorizes it. If neither, then I stand by my position that it does not "exist". If so, then I will have learned something.

Re:NYCL's analysis is just... wrong.

[NewYorkCountryLawyer]

The All Writs Act (28 U.S.C. Â 1651) very generally allows Federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law", and while the FRCP abolishes several writs by name, mandamus isn't one of them. Advisory writs of mandamus are "extraordinary", in the legal sense, only meant to be used for matters of great public importance and urgency. Apparently the Appeals Court felt that this matter fell into that category

Yes but the great prerogative writ of mandamus existed in the "usages and principles of law". "Advisory mandamus" did not (and in my opinion -- subject to someone showing me differently -- still does not).

Re:And...

[jd]

Possibly nothing. "Advisory" would imply that it isn't actually something the court is ruling on but merely offering an opinion on. This is reinforced by NYCL's assertion that "advisories" aren't permitted from a Federal court, suggesting the original court would not be authorized to comply.

On the other hand, possibly everything. If the judges in the appeals court did indeed understand the case and then suddenly lose that understanding, they may have been "leaned on" or were taking backhanders. (I seem to recall a judge pleading guilty to taking bribes from a juvenile detention centre to convict kids just recently. I doubt it's an isolated case.)

There again, since the appeals court acknowledged some dubious elements to the appeal, there may be grounds to take it further, in which case it might mean anything the next lot of judges want it to mean.

Simple solution

[Tarlus]

I'll just download a pirated copy of the video. :D

Re:No Justic in the legal system.

[Opportunist]

In the after life there's no justice either, unless the atheists are right.

If they are, you're just dead, just like the rest of everyone who died, and everyone is equally dead. That's maybe the lowest form of justice, making everyone the same, but it's at least some.

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?

Even our legal system is superior to that scam.

Re:No Justic in the legal system.

[gringofrijolero]

Don't harsh my high, man. Please permit me my Shakespearean romantic fantasies.

Looks fairly reasonable

[achurch]

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.

It ain't just the First Amendment being trampled.

[icannotthinkofaname]

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!

Re:No Justic in the legal system.

[AlamedaStone]

I'm an atheist personally, but I can imagine an afterlife that serves justice. It means every religion is wrong, but that's actually easier for me to deal with than the idea that any of them are right.

And now back to the topic. Although it would be nice to have the antics of these people up on display, I don't see if, or how, this decision directly impacts the issues of the case. Is it just the implication that it is being presided over by people not well-versed in the law?

Re:No Justic in the legal system.

[Opportunist]

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.

And what if another faction is right?

[Anonymous Coward]

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.

Re:There are more people in jail

[Trahloc]

Ok, I'm actually a huge mafiaa hater but could you point to studies/stats showing normal every day citizens being thrown in jail for copyright/IP infringement? The guy who makes bootleg movies and sells them being thrown in jail I have nothing against, commercial exploitation of someone elses copyrights should be illegal. But the individual citizen freely trading without profit as a motive being chucked in jail is new for me. May have happened once or twice but every case I remember here on /. has been about people being sued for stupid levels of money, not becoming Bubba's new cellmate.

Re:No Justic in the legal system.

[Opportunist]

I shall not be ignorant, yet I must not question the Lord's abilities (Matt 4:7, Deut 6:16, or 1 Cor 10:9 if you prefer that one)? How am I supposed to learn if I cannot try?

Before you say it's not relevant and out of context, so is yours. Cor 10 preaches to people who already heard the word and is supposed to keep them from forgetting it. And again it tells the listeners that they should have faith and not test the Lord.

It's not a long way from blind faith to ignorance.

Did you even read your own link?

[mr_matticus]

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.

Re:No Justice in the legal system.

[gringofrijolero]

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