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Appeals Court Says RIAA Hearing Can't Be Streamed

timothy posted about 5 years ago | from the may-not-is-more-like-it dept.

The Courts 208

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."

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208 comments

No Justic in the legal system. (0, Flamebait)

Anonymous Coward | about 5 years ago | (#27607959)

Why do we keep trusting a dishonest Justice system. The system is rigged. There is no Justice in the Legal system none.

Re:No Justic in the legal system. (5, Insightful)

gringofrijolero (1489395) | about 5 years ago | (#27607995)

*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.

Re:No Justic in the legal system. (4, Insightful)

Opportunist (166417) | about 5 years ago | (#27608237)

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. (2, Interesting)

AlamedaStone (114462) | about 5 years ago | (#27608515)

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. (3, Interesting)

Opportunist (166417) | about 5 years ago | (#27608549)

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.

Re:No Justice in the legal system. (1)

TaoPhoenix (980487) | about 5 years ago | (#27609269)

(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.

Re:No Justic in the legal system. (1)

Derosian (943622) | about 5 years ago | (#27608621)

In the Christian system, nobody is judged until everyone has heard the laws... So I find it interested you would make this point. =)

Re:No Justic in the legal system. (0, Offtopic)

Opportunist (166417) | about 5 years ago | (#27608719)

So there are possibly quite a few non-christians in heaven, as long as they didn't know about Christianity?

I dunno if I want to spend eternity with people beliving in a religion that rewards ignorance.

Re:No Justic in the legal system. (1)

umeboshi (196301) | about 5 years ago | (#27608929)

I dunno if I want to spend eternity with people beliving in a religion that rewards ignorance.

umeboshi@bard:~$ bible 1cor10:1

1 Corinthians 10

    1 Moreover, brethren, I would not that ye should be ignorant, how that all
our fathers were under the cloud, and all passed through the sea;

... there's more, too.
Christianity doesn't reward ignorance.

Re:No Justic in the legal system. (3, Insightful)

Opportunist (166417) | about 5 years ago | (#27609021)

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.

And what if another faction is right? (2, Insightful)

Anonymous Coward | about 5 years ago | (#27608739)

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:No Justic in the legal system. (1)

BrokenHalo (565198) | about 5 years ago | (#27608761)

Where does it say that? And in any case, such a restrospective law is itself grossly unjust. Better no law at all.

Stupid stupid stupid fallacy (1)

Hognoxious (631665) | about 5 years ago | (#27608703)

That's maybe the lowest form of justice, making everyone the same, but it's at least some.

Equality != justice, unless everyone deserves the same. Otherwise why not punish the innocent along with the guilty?

Re:No Justic in the legal system. (1)

BrokenHalo (565198) | about 5 years ago | (#27608745)

...and everyone is equally dead. That's maybe the lowest form of justice, making everyone the same, but it's at least some.

The lowest? one could equally argue that it is the highest form. Dead is dead, regardless of whether one is a cockroach or a monarch among men, and that's just fine by me.

Re:No Justic in the legal system. (0)

Anonymous Coward | about 5 years ago | (#27608769)

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.

I don't know what scam you're referring to, but the alternative to atheism is not what you just described. The laws to be followed are written on the hearts of every human being to ever have existed; they are embedded within our souls. Most people call it a conscience, and I think you know what I'm talking about. If you're referring to something else, like some set of legalistic religious practices, then you've been mislead.

Re:No Justic in the legal system. (1)

AlterRNow (1215236) | about 5 years ago | (#27608817)

Then punishing people who do not have this "conscience" is unfair because they don't know the rules.

Re:No Justic in the legal system. (0)

Anonymous Coward | about 5 years ago | (#27608855)

Who says that those people get punished?

Re:No Justic in the legal system. (1)

blind biker (1066130) | about 5 years ago | (#27609195)

Guess the right religion? I thought it was already well known that the Mormons were right all along.

Re:No Justic in the legal system. (1)

e9th (652576) | about 5 years ago | (#27608327)

Why do we keep trusting a dishonest Justice system.

We haven't found an achievable alternative. But let's keep looking.

No incentive (1, Insightful)

Anonymous Coward | about 5 years ago | (#27608445)

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.

Re:No incentive (1)

AlamedaStone (114462) | about 5 years ago | (#27608505)

Stop being an AC and join the conversation, or please take your paranoid rantings to fark, or 4chan or something.

No incentive to not post AC. (0)

Anonymous Coward | about 5 years ago | (#27608571)

So you are studying law I guess.

I'll stay an AC.

Re:No incentive to not post AC. (1)

Trahloc (842734) | about 5 years ago | (#27608757)

Doubt he's a lawyer, I know I'm not. But I agree with him, step up or step out.

go felch a lawyer? (0)

Anonymous Coward | about 5 years ago | (#27608987)

"You must be new here"

Re:No Justic in the legal system. (1)

westlake (615356) | about 5 years ago | (#27609067)

Why do we keep trusting a dishonest Justice system. The system is rigged. There is no Justice in the Legal system none.

There is the smell of prime grade ham in every Slashdot performance.

It is scarcely a secret that the federal courts have always been hostile to broadcasting their proceedings - and for precisely that reason.

Yay, we get Soviet Show Trials now in America (3, Insightful)

ajsbsd.net (1287590) | about 5 years ago | (#27607965)

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 (1)

gringofrijolero (1489395) | about 5 years ago | (#27608089)

Show trial? Not even close [richsamuels.com]!

Re:Yay, we get Soviet Show Trials now in America (2, Informative)

ajsbsd.net (1287590) | about 5 years ago | (#27608135)

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 (1)

gringofrijolero (1489395) | about 5 years ago | (#27608207)

Yes, but please don't make like it's happening just now. The more cynical, but truer description would be , just another day in paradise, or business as usual, or SNAFU. We need another gimmick to get a reaction out of the public, unfortunate as that seems.

Re:Yay, we get Soviet Show Trials now in America (0)

Anonymous Coward | about 5 years ago | (#27608281)

You will only get a federal government show trial if you are a "right wing extremist."

This is just regular crooked "justice"

Re:Yay, we get Soviet Show Trials now in America (2, Insightful)

cliffski (65094) | about 5 years ago | (#27608495)

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 (1)

tagno25 (1518033) | about 5 years ago | (#27608511)

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.

and all closing Gitmo will do is remove all US militarily presence from Cuba(even though we may allow trade with Cuba in the next few years)
The prisoners will just me moved to the continental US, Hawaii, or some small island 20 miles from land (including oil rigs)

Re:Yay, we get Soviet Show Trials now in America (1)

Trahloc (842734) | about 5 years ago | (#27608771)

I have a feeling they meant the reasons Gitmo exists rather than the actual brick n mortar facility. The whole "your rights mean nothing we throw you in jail and forget about you" part probably being at the front and center. Whether its in continental USA or some back hole no ones ever heard of isn't really the point.

Re:Gitmo (1)

TaoPhoenix (980487) | about 5 years ago | (#27609303)

Did they pay for the rights to the music they were so proud of playing 24 hours a day at high volume? "Public Performance!"

There are more people in jail (0)

Anonymous Coward | about 5 years ago | (#27608643)

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.

Re:There are more people in jail (3, Insightful)

Trahloc (842734) | about 5 years ago | (#27608789)

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:Yay, we get Soviet Show Trials now in America (0)

Anonymous Coward | about 5 years ago | (#27609207)

I fail to see how exactly does the existence of an alledged "bigger threat to your liberty" means everyone should just ignore, tolerate and even accept alledged "smaller" threats to your liberty. How does that work?

And by the way, you must have parachuted into slashdot. There are a whole lot of people who complain about Gitmo around here. Heck, quite a few users aren't even from the US and you surely have a clue about the world's views regarding that totalitarian, fascist US imprisionment camp.

And... (1)

Jurily (900488) | about 5 years ago | (#27607973)

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?

duh.. (5, Informative)

QuantumG (50515) | about 5 years ago | (#27608051)

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 [wikipedia.org]

Obviously. I mean, come on, it's a prerogative writs and stuff.

Re:duh.. (2, Interesting)

Thanshin (1188877) | about 5 years ago | (#27608155)

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 [wikipedia.org]

They're clearly making stuff up as they go.

Re:And... (3, Informative)

jd (1658) | about 5 years ago | (#27608161)

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.

Can they appeal? (2, Insightful)

Steve1952 (651150) | about 5 years ago | (#27607991)

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

Re:Can they appeal? (1)

ameyer17 (935373) | about 5 years ago | (#27608017)

Sure.
The more important question is "Can Tenenbaum appeal and win?"

Re:Can they appeal? (2, Interesting)

jd (1658) | about 5 years ago | (#27608229)

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? (1)

jd (1658) | about 5 years ago | (#27608175)

Is the judge even required to adhere to an advisory? In other words, 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?

Re:Can they appeal? (5, Informative)

Zurk (37028) | about 5 years ago | (#27608361)

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? (2, Interesting)

Quothz (683368) | about 5 years ago | (#27608419)

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? (3, Informative)

mr_matticus (928346) | about 5 years ago | (#27609033)

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 to specific and narrow exceptions in this particular jurisdiction. This was a case where the judge decided she had unbounded authority to determine the grounds for an exception. I don't know of any attorneys or appellate courts that would look fondly on trial judges ignoring the express rules of court. Trial judges are afforded a great deal of discretion in conducting the affairs of their individual courtrooms, but when there are explicit rules, judges are expected to follow them. It's a procedural safeguard.

If broadcasting were allowed for reasons completely outside the enumerated exceptions, what would stop the broadcast of your divorce? You could say that there should be an exception for cases of public policy significance, but there is not currently one in the rules, nor should there be, since there is no way to affect the outcome both fairly and positively.

Transparency is important, but so is integrity. The result of a trial should be reported publicly; people who are interested should generally have access to the records; people should be interested in the results of cases like this. But the public should wait for a result and the complete picture first. That's the way it's supposed to work. The courts act in a closed universe of the law. If Congress or the public doesn't like the result, they can act to change the law, which the courts then apply. Interfering in a single case is not an effective way to fix problems; all that effort is undone on appeal when it is determined that the proceedings below were tainted.

Re:Can they appeal? (0)

Anonymous Coward | about 5 years ago | (#27609221)

I agree with some of your reasoning, however part of the rationale behind the argument for broadcasting the proceedings is this:
The court will record all the happenings, and render a decision - then make the recordings available for public consumption. Ideally this is great, until you have a justice system that continues to be unfair. In this kind of a case, then the judgement is made public, and then people end up thinking something is illegal when it isn't.

Basically it ends up being a one-sided story.

Re:Can they appeal? (1)

mr_matticus (928346) | about 5 years ago | (#27609381)

Ideally this is great, until you have a justice system that continues to be unfair. In this kind of a case, then the judgement is made public, and then people end up thinking something is illegal when it isn't.

This doesn't make any sense whatsoever.

Broadcasting the trial doesn't make court more "fair"--it simply can't. The judge is still in charge, whose only actual fear is the appellate court above him, and the jury still deliberates in private. Nothing about having more people watching makes anything more "fair".

As to people "ending up thinking something is illegal when it isn't", such a result has absolutely nothing to do with broadcasting the proceedings. What exactly are you referring to?

Re:Can they appeal? (0)

Anonymous Coward | about 5 years ago | (#27608609)

Did you actually read the judgment thingy or are you just agreeing with NYCL? As cool as he is, if I was judge and had to rule based on what the rules say, I'd go the same way. You can't have the courts ignoring their own rules just because it you like it in this case. (Insert someone complaining about them doing that anyways)
As the second judge suggested that they need to be reevaluated but in the mean time, it's the rule.

HOW IS THIS INSIGHTFUL? MOD PARENT DOWN (0)

Anonymous Coward | about 5 years ago | (#27608663)

Insightful because "I agreed with NYCL and then asked a question that doesn't provide any insight?"

Re:HOW IS THIS INSIGHTFUL? MOD PARENT DOWN (0)

Anonymous Coward | about 5 years ago | (#27608853)

I'd mod you up but your post says that I shouldn't. If only there was a (+0, Self-Defeating) mod.

By Neruos (0)

Anonymous Coward | about 5 years ago | (#27608019)

When does the federal government act restricted and within the bounds of the constitution?

wait for the bootleg... (5, Funny)

pyrote (151588) | about 5 years ago | (#27608035)

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

Should be modded insightful (0)

Anonymous Coward | about 5 years ago | (#27608763)

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.

Who to blame (4, Insightful)

DrLudicrous (607375) | about 5 years ago | (#27608039)

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 (3, Interesting)

n3tcat (664243) | about 5 years ago | (#27609235)

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.

What the hell (1)

Jane Q. Public (1010737) | about 5 years ago | (#27608055)

is an "advisory mandamus"???

Would not that constitute a court remanding a case, then advising how to rule?

Re:What the hell (1)

gringofrijolero (1489395) | about 5 years ago | (#27608253)

It's like saying the STOP sign is merely a suggestion. Don't try to get out of a ticket with that...

Re:What the hell (1)

umeboshi (196301) | about 5 years ago | (#27608977)

The stop sign is merely a suggestion. Failing to heed the suggestion could result in a failure to yield right of way, which is the real crime.

NYCL's analysis is just... wrong. (5, Interesting)

Zurk (37028) | about 5 years ago | (#27608141)

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. (5, Informative)

mr_matticus (928346) | about 5 years ago | (#27608355)

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. (-1, Redundant)

Anonymous Coward | about 5 years ago | (#27608369)

Food fight!

Re:NYCL's analysis is just... wrong. (-1, Redundant)

Anonymous Coward | about 5 years ago | (#27608399)

Oh, it's on!

Simple solution (2, Funny)

Tarlus (1000874) | about 5 years ago | (#27608165)

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

Re:Simple solution (1)

dwandy (907337) | about 5 years ago | (#27609231)

nah, it'll probably just be some crappy cam a guy took with his shoe-cam that totally won't do justice to the theatrics. I think I may stick to reading the screenplay for this one.

So, in layman's terms (1)

Opportunist (166417) | about 5 years ago | (#27608177)

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?

My ruling (1)

Lurker (1078) | about 5 years ago | (#27608221)

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!

Re:My ruling (1)

drinkypoo (153816) | about 5 years ago | (#27608581)

(-1, Trying too hard) Besides, that movie was 100% wrong. The Mexicans will have taken over the USA by then. It'll be Carlos Jr. "Fuck off, ese, I'm eating."

Looks fairly reasonable (4, Insightful)

achurch (201270) | about 5 years ago | (#27608343)

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 [slashdot.org]), 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.

Re:Looks fairly reasonable (1)

pembo13 (770295) | about 5 years ago | (#27608395)

I hate to go against the /. groupthink

There are only 20 something posts right now. Do you have some kind of psychic foresight on the /. group think yet to show itself?

Re:Looks fairly reasonable (1)

i_b_don (1049110) | about 5 years ago | (#27608465)

are you kidding? This is slashdot and an RIAA topic!

Anything against the RIAA will be pushed for, against for the RIAA will be argued against. For an RIAA topic, "fair and balanced" means the same thing here as it does on Fox "news".

d

Re:Looks fairly reasonable (0, Troll)

cliffski (65094) | about 5 years ago | (#27608637)

couldn't agree more. I've even managed to get some slashdot kiddies to defend guantanomo bay, as they go through the mental gymnastics required to allow them to be outraged by people expecting to be paid for making music.

Its like watching 3 year olds rationalise why they can have more candy, only with even less maturity and more whining.

It ain't just the First Amendment being trampled. (2, Interesting)

icannotthinkofaname (1480543) | about 5 years ago | (#27608473)

http://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution#Public_trial [wikipedia.org]

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:It ain't just the First Amendment being trample (1)

Trahloc (842734) | about 5 years ago | (#27608829)

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.

Re:It ain't just the First Amendment being trample (1, Funny)

Anonymous Coward | about 5 years ago | (#27608969)

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.

Re:It ain't just the First Amendment being trample (0)

Anonymous Coward | about 5 years ago | (#27609099)

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.

Did you even read your own link? (4, Insightful)

mr_matticus (928346) | about 5 years ago | (#27609103)

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.

Unbiased summary? (-1, Flamebait)

cliffski (65094) | about 5 years ago | (#27608489)

" the decision gives the RIAA permission to 'cower behind the same legal system they're using to pillory innocent people.'"

I love the unbiased factual reporting we get here on digg.
One would like to think a 'lawyer' as he describes himself, would be capable of stating the facts, rather than trying to throw schoolyard jibes around all the time.
I guess acting sensibly and calmly doesn't generate ad-impressions for NYCL's blog though.

Re:Unbiased summary? (0)

Anonymous Coward | about 5 years ago | (#27608577)

"You got ad in my hominem!"
"Hey, you got your hominem in my ad!"

Re:Unbiased summary? (0)

Anonymous Coward | about 5 years ago | (#27608711)

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.

Looks like TPB needs to get creative... (0)

Anonymous Coward | about 5 years ago | (#27608585)

They need some undercover recording going on then. :D

How hard can it be to sneak in some recording devices?

Welcome to your black-bag trial and judgement. (1)

ring-eldest (866342) | about 5 years ago | (#27608935)

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?

Re:Welcome to your black-bag trial and judgement. (1)

Opportunist (166417) | about 5 years ago | (#27608973)

I could see a problem with archives in private hands. Could you see a webpage to the notion of "I know what you did 10 years ago"?

It would make rehabilitation a lot harder. I can see it in certain cases, but I would not want to make it a general thing, especially in criminal cases. I'm not worried about the public seeing trials. I'm worried about archives that will brand anyone a criminal for life, no matter how trivial his "crime" was.

Re:Welcome to your black-bag trial and judgement. (1)

ring-eldest (866342) | about 5 years ago | (#27609035)

Why is that not a problem now? In most of those criminal cases you're worried about the information is already in the public record. It's just more difficult and time consuming for the average joe to lay hands on.

As it stands now, people with enough time, money, or some sort of vindictive grudge have easy access to that information you fear. This is just a more readily accessible format.

I'm not advocating the unfettered access to people's personal lives; the court already routinely blocks access to things like the identity of rape victims, or the names of parties in adoption cases or crimes involving children. I simply think that these so-called open and public court procedures should be made available to the public in the most convenient way possible, and not merely to those willing to attend in person (eliminating most of the working class) or spend time and effort tracking down and sometimes paying for printed documents (also eliminating most of the working class). So what are these judges worried about?

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