O'Reilly is even more backwards and loud mouthed than most people his age. I can't wait for the old generation to just die out already. Their legacy superstitions and bigotry have encroached far beyond what any reasonable person would find appreciable.
taking someone who is not very tech-oriented/aligned and putting them as CTO is just like taking politicians and lawyers and asking them to draft bills on technology.
See how well that's been working for us?
What do you know? A non-IT guy for CTO. Brilliant. Now THAT is hope and change!
Oh well, I guess we should be getting used to these shockingly bad decisions by the Obama administration. What's next? Emeril in change of the military? Norman Schwarzkopf in charge of healthcare? Ann Coulter in charge of the HUD (oh wait, she's not eligible, she paid her taxes)?
How about putting RIAA lawyers in charge of the Department of Justice? Would that work?
I've seen this at a lot of organizations, the CIO is invariable a non-techie hired on for his skills at schmoozing management than any tech knowledge. Management find real techies a threat as they might get found out. They mostly spend their time quoting the tech press and spouting phrases like 'integrated innovation' and 'empowerment'. The top man specifically hires people dumber then him, else they could be as threat to his job. In turn the CTO hires someone even dumber than he is, and so on down the line. If something 'technical' comes along they hire in a 'consultant', fire him and take credit for his work. Of course any real in-house techies have to be transferred before they figure out just how stupid the CIO really is. So you end up with a business where the longest serving employee has been there less then ten months. Eventually the company goes down the tubes...
From what I know about the technology world, you have hit the nail on the head! So why is O'Reilly wrong? What is the fallacy in his thinking?
about this. My first reaction was that it was wrong not to appoint a technologist as CTO. Then I read O'Reilly's article, which argues cogently that the appointment makes a lot of sense.
O'Reilly is someone for whom I have respect.
I'm really really curious about what the Slashdot community has to say on this.
Usually I'm writing on legal issues, which I know something about.
But I am not a technologist, and I have no expertise in government or in policy.
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.
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.
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).
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.
My understanding of a Mandamus Order (having been through one) was that it "compelled" action.
How the hell does a court provide an "advisory mandamus" order? Isn't that an oxymoron? An advisory can't compel action?
Sorry... I know you are on the other side of the argument, but "perhaps" you can explain what an advisory is as I don't know that we have that concept in Canada?
We don't have that concept here, either, in my opinion. There is no statute authorizing it and it expressly contradicts (a) what mandamus is, and (b) the constitutional limitation on the power of the federal courts restricting them to decision of "cases and controversies".
After I'd submitted the article, I was contacted by a spokesman for Bahnhof who advised me that they hadn't just "begun" deleting the customer linkage information, that they have been doing it all along. So the report in "The Local" was not exactly accurate.
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".
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.
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.
I've never heard of it, and it sounds contrary to (a) what a writ of mandamus is supposed to be about, and (b) the judicial authority of a US federal court which is only allowed to decide 'cases and controversies'.
If it's expressly authorized by the US Supreme Court, or by a statute, then I'll admit that it exists; if not, I stand by my position that it does not.
Since this decision does seem to be bogus, can Tenenbaum appeal?
He can make a motion for a rehearing en banc (before the whole First Circuit, which would just add 3 more judges into the mix), or he can try to get the US Supreme Court to hear it.
I guess this community is what it is, but there sure seems to be an odd and misplaced anger over this.
I support and approve of President Obama generally.
But seeing him appoint 6 people from the same law firm to the Department of Justice, mostly to very high positions in that department, who were working on and supporting a legal campaign that was frivolous, meanspirited, unnecessary, based on nonexistent legal theories, and unsupported by evidence, and which represented an abuse of our federal judicial system, was a serious mistake on his part IMHO.
Hmm... maybe Obama is actually pro-P2P, and he's hiring all of the RIAA's lawyers away from them, so they'll fail in court?
Well they're already failing in court.
But you may have a point there. The 6 RIAA lawyers who are now in the DOJ are legally recused from working on any matters involving the RIAA, EMI, Vivendi Universal, SONY BMG, or Warner Bros Records or any of their affiliates. So by appointing them to DOJ, perhaps he's taken the DOJ -- which has recently acted like a fawning toady of the RIAA -- out of the game. The 2 briefs the Obama DOJ has filed in RIAA cases, in SONY BMG Music Entertainment v. Tenenbaum and SONY BMG Music Entertainment v. Cloud read like they were drafted by the proverbial monkeys let loose in a room of typewriters. When the judges actually read the cases the briefs cited, and the authorities they deliberated failed to cite, they will be appalled that our nation's legal department could be so irresponsible.
The tactics used by RIAA lawyers in the past demonstrate a near complete lack of human decency, not exactly the type of people I feel comfortable with in the Department of Justice.
I, for one, welcome total control of our Nation's legal department by 6 alien overlords from the same RIAA-representing law firm.
Human decency is an overrated quality; there are many who have prospered on bloodthirstiness and greed.
That's exactly what the people who are trying to control music distribution want. They don't want anyone to produce and distribute any music that they can't play middleman to.
That's the real reason they're fighting P2P. They're terrified of it, not because of some lost sales, but because it is a competitor. What they fear is that artists will start realizing that P2P is popular enough that they don't need the RIAA companies anymore. Their main goal isn't to win any of these legal cases, but to make people afraid of downloading from P2P networks. The RIAA is more worried about people downloading Indie music from P2P than they are their own music.
Exactly. The musician doesn't need them any more. And the fans can find better music elsewhere.
Slashdot Mirror
O'Reilly is even more backwards and loud mouthed than most people his age. I can't wait for the old generation to just die out already. Their legacy superstitions and bigotry have encroached far beyond what any reasonable person would find appreciable.
Uh oh. I think that includes me.
taking someone who is not very tech-oriented/aligned and putting them as CTO is just like taking politicians and lawyers and asking them to draft bills on technology. See how well that's been working for us?
Hope you get modded up for that one.
What do you know? A non-IT guy for CTO. Brilliant. Now THAT is hope and change! Oh well, I guess we should be getting used to these shockingly bad decisions by the Obama administration. What's next? Emeril in change of the military? Norman Schwarzkopf in charge of healthcare? Ann Coulter in charge of the HUD (oh wait, she's not eligible, she paid her taxes)?
How about putting RIAA lawyers in charge of the Department of Justice? Would that work?
I've seen this at a lot of organizations, the CIO is invariable a non-techie hired on for his skills at schmoozing management than any tech knowledge. Management find real techies a threat as they might get found out. They mostly spend their time quoting the tech press and spouting phrases like 'integrated innovation' and 'empowerment'. The top man specifically hires people dumber then him, else they could be as threat to his job. In turn the CTO hires someone even dumber than he is, and so on down the line. If something 'technical' comes along they hire in a 'consultant', fire him and take credit for his work. Of course any real in-house techies have to be transferred before they figure out just how stupid the CIO really is. So you end up with a business where the longest serving employee has been there less then ten months. Eventually the company goes down the tubes ...
From what I know about the technology world, you have hit the nail on the head! So why is O'Reilly wrong? What is the fallacy in his thinking?
he doesn't need to be a geek so long as he has the right geeks working for him
Is that really true? I'm a lawyer. No way on God's green earth would I work under the supervision of a non-lawyer.
I'm gonna reform copyright. The laws are faulty.
- Let me fill the DOJ with RIAA lawyers.
The current tech laws need reform.
- Let me appoint another windbag politician to do it instead of someone who actually knows what the hell bittorrent is.
That was my initial reaction. But O'Reilly makes a cogent contrary argument. What is flawed in what O'Reilly is saying?
about this. My first reaction was that it was wrong not to appoint a technologist as CTO. Then I read O'Reilly's article, which argues cogently that the appointment makes a lot of sense.
O'Reilly is someone for whom I have respect.
I'm really really curious about what the Slashdot community has to say on this.
Usually I'm writing on legal issues, which I know something about.
But I am not a technologist, and I have no expertise in government or in policy.
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.
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.
I've reviewed the Schlagenhauf case and found nothing in it which authorizes "advisory mandamus".
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).
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.
My understanding of a Mandamus Order (having been through one) was that it "compelled" action. How the hell does a court provide an "advisory mandamus" order? Isn't that an oxymoron? An advisory can't compel action? Sorry ... I know you are on the other side of the argument, but "perhaps" you can explain what an advisory is as I don't know that we have that concept in Canada?
We don't have that concept here, either, in my opinion. There is no statute authorizing it and it expressly contradicts (a) what mandamus is, and (b) the constitutional limitation on the power of the federal courts restricting them to decision of "cases and controversies".
After I'd submitted the article, I was contacted by a spokesman for Bahnhof who advised me that they hadn't just "begun" deleting the customer linkage information, that they have been doing it all along. So the report in "The Local" was not exactly accurate.
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".
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.
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.
What the hell is an "advisory mandamus"???
I've never heard of it, and it sounds contrary to (a) what a writ of mandamus is supposed to be about, and (b) the judicial authority of a US federal court which is only allowed to decide 'cases and controversies'.
If it's expressly authorized by the US Supreme Court, or by a statute, then I'll admit that it exists; if not, I stand by my position that it does not.
Since this decision does seem to be bogus, can Tenenbaum appeal?
He can make a motion for a rehearing en banc (before the whole First Circuit, which would just add 3 more judges into the mix), or he can try to get the US Supreme Court to hear it.
I guess this community is what it is, but there sure seems to be an odd and misplaced anger over this.
I support and approve of President Obama generally.
But seeing him appoint 6 people from the same law firm to the Department of Justice, mostly to very high positions in that department, who were working on and supporting a legal campaign that was frivolous, meanspirited, unnecessary, based on nonexistent legal theories, and unsupported by evidence, and which represented an abuse of our federal judicial system, was a serious mistake on his part IMHO.
Hmm... maybe Obama is actually pro-P2P, and he's hiring all of the RIAA's lawyers away from them, so they'll fail in court?
Well they're already failing in court.
But you may have a point there. The 6 RIAA lawyers who are now in the DOJ are legally recused from working on any matters involving the RIAA, EMI, Vivendi Universal, SONY BMG, or Warner Bros Records or any of their affiliates. So by appointing them to DOJ, perhaps he's taken the DOJ -- which has recently acted like a fawning toady of the RIAA -- out of the game. The 2 briefs the Obama DOJ has filed in RIAA cases, in SONY BMG Music Entertainment v. Tenenbaum and SONY BMG Music Entertainment v. Cloud read like they were drafted by the proverbial monkeys let loose in a room of typewriters. When the judges actually read the cases the briefs cited, and the authorities they deliberated failed to cite, they will be appalled that our nation's legal department could be so irresponsible.
The tactics used by RIAA lawyers in the past demonstrate a near complete lack of human decency, not exactly the type of people I feel comfortable with in the Department of Justice.
I, for one, welcome total control of our Nation's legal department by 6 alien overlords from the same RIAA-representing law firm.
Human decency is an overrated quality; there are many who have prospered on bloodthirstiness and greed.
That's exactly what the people who are trying to control music distribution want. They don't want anyone to produce and distribute any music that they can't play middleman to.
That's the real reason they're fighting P2P. They're terrified of it, not because of some lost sales, but because it is a competitor. What they fear is that artists will start realizing that P2P is popular enough that they don't need the RIAA companies anymore. Their main goal isn't to win any of these legal cases, but to make people afraid of downloading from P2P networks. The RIAA is more worried about people downloading Indie music from P2P than they are their own music.
Exactly. The musician doesn't need them any more. And the fans can find better music elsewhere.
Quick! Call a Doctor! This is serious! What if he speaks like this in front of a JUDGE????
I'll just tell him how it would be in Soviet Russia, if Natalie Portman were involved.
Purportedly, the RIAA can identify each of the people who illegally acquired a copy
No, actually they've admitted they can't.