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RIAA Tries To Appeal Order Allowing Internet TV Court Broadcast 209

Posted by Soulskill
from the panic-mode-setting-in dept.
NewYorkCountryLawyer writes "The RIAA has appealed the order entered several days ago allowing the January 22nd hearing in SONY BMG Music v. Tenenbaum to be streamed over internet TV. Additionally, they've made a motion for a stay. I'm just a country lawyer, but as far as I know: (a) it's not possible to appeal the order, (b) it was procedurally improper and ineffective to file a notice of appeal, and (c) it was improper to direct their motion for a stay to the District Court Judge. Well, let's hope the arguments in the First Circuit will be streamed, too. Meanwhile, one commentator wonders why the tooth and nail opposition to broadcasting, since the professed aim of the litigations was to 'educate' the public?"
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RIAA Tries To Appeal Order Allowing Internet TV Court Broadcast

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  • by Eric Smith (4379) <eric.brouhaha@com> on Saturday January 17, 2009 @02:23PM (#26498577) Homepage Journal

    since the professed aim of the litigations was to 'educate' the public?"

    Well, sure, but not to educate the public *too* much.

    • by Anonymous Coward on Saturday January 17, 2009 @02:26PM (#26498617)

      It isn't a matter of degrees. They simply want to lie to the public. Here's a case where they're actually getting caught in the act.

      • by The Snowman (116231) * on Saturday January 17, 2009 @02:47PM (#26498797) Homepage

        It isn't a matter of degrees. They simply want to lie to the public. Here's a case where they're actually getting caught in the act.

        Correct, they want to educate the public with their lies. However, this is not the way they want to do it.

        Step one: win the court case by any means necessary, including not following court procedures, obtaining evidence illegally, etc. However, try to be discrete. Step two: after winning the court case, spin it such that the defendant was guilty as hell and you were the shining beacon of justice and honesty. Tell everyone that they need to do whatever it is you want because hey, the court just agreed that you are right.

        What they don't want is for everyone to be "educated" before winning the court case. Otherwise, people will see the tactics they use and the unwashed masses may become actively hostile toward their cause.

        • Re: (Score:2, Funny)

          by C0R1D4N (970153)

          What they don't want is for everyone to be "educated" before winning the court case. Otherwise, people will see the tactics they use and the unwashed masses may become actively hostile toward their cause.

          The unwashed masses just can't get enough of tort on TV.

        • by FingerSoup (928761) on Saturday January 17, 2009 @10:39PM (#26502555)
          Actually, what they don't want is hundreds of lawyers on the internet picking apart their case and e-mailing their findings to Harvard.... Because, even the RIAA can't stand a chance of an entire army of lawyers working pro bono.
        • Re: (Score:3, Funny)

          by volpe (58112)

          including not following court procedures, obtaining evidence illegally, etc. However, try to be discrete .

          Of course. Doing such things continuously will get you into trouble.

    • by causality (777677) on Saturday January 17, 2009 @02:49PM (#26498829)

      since the professed aim of the litigations was to 'educate' the public?"

      Well, sure, but not to educate the public *too* much.

      So often the message sent is, "you're educated if you agree with me." Truth does not mean very much to people like this. In fact truth, or at least the love of truth and the entire truth not for any agenda but for its own sake, was the first thing they had to sacrifice to become as sold to their own system as they are. The thing that (I believe) is often forgotten is that once people are compromised in this fashion, for any reason, they become "true believers" in whatever it was that compromised them and they give their allegiance to it. Most people are not entirely 100% themselves and are compromised in some way by ideas that did not come from a careful evaluation of available options. This is where the abuses and the underhanded maneuvers come from. That is, they come not from people who know they are doing something wrong and do not care, but from people who have an endless supply of rationalizations that they themselves believe.

      • by Anonymous Coward on Saturday January 17, 2009 @02:52PM (#26498845)
        So often the message sent is, "you're educated if you agree with me." Truth does not mean very much to people like this. In fact truth, or at least the love of truth and the entire truth not for any agenda but for its own sake, was the first thing they had to sacrifice to become as sold to their own system as they are. The thing that (I believe) is often forgotten is that once people are compromised in this fashion, for any reason, they become "true believers" in whatever it was that compromised them and they give their allegiance to it. Most people are not entirely 100% themselves and are compromised in some way by ideas that did not come from a careful evaluation of available options. This is where the abuses and the underhanded maneuvers come from. That is, they come not from people who know they are doing something wrong and do not care, but from people who have an endless supply of rationalizations that they themselves believe.

        Now why'd you hafta go and bring religion into this discussion?
        • by causality (777677) on Saturday January 17, 2009 @03:05PM (#26498967)

          So often the message sent is, "you're educated if you agree with me." Truth does not mean very much to people like this. In fact truth, or at least the love of truth and the entire truth not for any agenda but for its own sake, was the first thing they had to sacrifice to become as sold to their own system as they are. The thing that (I believe) is often forgotten is that once people are compromised in this fashion, for any reason, they become "true believers" in whatever it was that compromised them and they give their allegiance to it. Most people are not entirely 100% themselves and are compromised in some way by ideas that did not come from a careful evaluation of available options. This is where the abuses and the underhanded maneuvers come from. That is, they come not from people who know they are doing something wrong and do not care, but from people who have an endless supply of rationalizations that they themselves believe. Now why'd you hafta go and bring religion into this discussion?

          That's a pretty funny joke that seems all too accurate. It requires something like a religious belief to behave in the abusive and amoral fashion as, in my opinion, the RIAA has done. That is, they imbue this cause/agenda of theirs with an undue importance that, in their minds, justifies any measures they take to further it. They sacrifice even their conscience on the altar of this Cause of theirs and in their minds they can do no wrong. To me, this elevation of peddling music to a status of mattering more than human suffering is the real meaning of "idolatry" (and is probably different from how most religious people use the term). It's really not unlike the process by which peaceful democratic nations become warlike dictatorships, just on a much smaller scale.

          • by KwKSilver (857599) on Saturday January 17, 2009 @04:48PM (#26499853)

            in their minds they can do no wrong

            An excellent example of hubris. The ancient Greeks seemed to consider it the worst possible character flaw; tragic heroes afflicted with hubris inevitably ended up dead, insane, maimed, or some combination thereof. Basically, it's playing God. That said, may the Furies perch upon the shoulders of the RIAA, its clients, and agents.

    • Re: (Score:2, Insightful)

      by vell0cet (1055494)
      the education they want the public to have is "you will get sued" not "you will get sued, it could end up in court and you may actually win".
    • by Andy_R (114137) on Saturday January 17, 2009 @04:45PM (#26499825) Homepage Journal

      I think the original phrase may have been "teach the public a lesson"?

      • You mean "teach the customer a lesson"? Every member of the public is a RIAA customer. Whether they know it or not. Those slackers.
        • Re: (Score:3, Insightful)

          by digitalunity (19107)

          To the RIAA, everyone who ISN'T a customer is a thief, because nobody in their right mind would choose to simply not listen to music from their crappy member corporations. /sarcasm

  • by Caspase9 (1442471)
    Does this mean I don't have to TiVo Judge Judy anymore?!?!???
  • by CWRUisTakingMyMoney (939585) on Saturday January 17, 2009 @02:25PM (#26498603)
    I can't wait for the RIAA to air out their ridiculous tactics and for the judge to laugh them right out of court. Would it be legal to record this and, say, put it on YouTube?
    • Re: (Score:3, Informative)

      by ScrewMaster (602015) *

      I can't wait for the RIAA to air out their ridiculous tactics and for the judge to laugh them right out of court. Would it be legal to record this and, say, put it on YouTube?

      Good question. Presumably this is a matter of public record.

      • While it may be a matter of record, one would think that since the lawyers are not media figures, you would have to get a release from each of them to display their likeness in a public manner.

        Of course, IANANYCL (I Am Not A NewYorkCountryLawyer).

    • by MrMista_B (891430) on Saturday January 17, 2009 @03:16PM (#26499063)

      Put it on YouTube?

      No.

      A single DMCA complaint will remove it, and three DMCA complaints will have your account deleted entirely.

      It doesn't matter if there is or is not anything in any of your videos which warrants a DMCA complaint - by posting anything that in any way threatens, or seems to threaten any corporate interest, it'll be the end of you.

      • by fluch (126140)

        No problem, just post it on Piratebay.org :-) Which is not as convenient as Youtube, but it will remain available...

      • Re: (Score:2, Insightful)

        by hldn (1085833)

        It doesn't matter if there is or is not anything in any of your videos which warrants a DMCA complaint - by posting anything that in any way threatens, or seems to threaten any corporate interest, it'll be the end of you [until you make another account and post it again.]

        fixed that for you.

    • A previous article [p2pnet.net] about this on p2pnet said that the Berkman center at the Harvard Law School intends to pay for rebroadcasting the footage and intends to do so under a creative commons non commercial license. They say details are still being worked out. It's possible CC non commercial might not allow posting to youtube, but I'm no lawyer.
  • First, please tell me you've seen the Futurama episodes with the lawyer chicken [theinfosphere.org].

    I'm just a country lawyer, but as far as I know: (a) it's not possible to appeal the order, (b) it was procedurally improper and ineffective to file a notice of appeal, and (c) it was improper to direct their motion for a stay to the District Court Judge.

    Well, I'm not a lawyer but isn't it pretty much the modus operandi of lawyers who are paid insane amounts of money to toe the line in the interest of their clients?

    I am by no means defending this action, but ... come on, you wouldn't do the same thing? They've been getting away with everything in private for so long, why ruin a good thing? If this becomes popular, the bawling college student they win a $500,000 suit again

    • I am by no means defending this action, but ... come on, you wouldn't do the same thing? They've been getting away with everything in private for so long, why ruin a good thing?

      If you're asking me whether I'm surprised they're resisting it, no I'm not. If I did what they do for a living, I'd be ashamed too. The last thing I would want is for the world -- including my friends and relatives -- to see what I do.

      But it's not really possible for me to imagine myself in their shoes, because -- having been born of a human mother -- I would never be in their shoes and -- being a lawyer and a gentleman -- would never do the things they do.

      • by BlueStrat (756137)

        Ray, I'm a musician (just an indy blues player/songwriter in a blues band) and a fan of yours. I cheer your courage in standing up to these scumbags. I worry about you though. I'm sure I'm not alone.

        I hope you figuratively/legally tear 'em a new one, but I also hope you pay proper attention to personal security. I doubt anyone that would conduct themselves in the way the RIAA/MPAA attack dogs and their masters do would totally rule out the possibility of arranging a "tragic accident/mugging/burglary" if suf

        • Ray, I'm a musician (just an indy blues player/songwriter in a blues band) and a fan of yours. I cheer your courage in standing up to these scumbags. I worry about you though. I'm sure I'm not alone. I hope you figuratively/legally tear 'em a new one, but I also hope you pay proper attention to personal security. I doubt anyone that would conduct themselves in the way the RIAA/MPAA attack dogs and their masters do would totally rule out the possibility of arranging a "tragic accident/mugging/burglary" if sufficiently desperate. There's plenty-enough money & power at stake here to make this, if not likely, at least plausible as an outlying possibility if they perceive you personally as enough of a threat to their revenue, power, and control. Scumbags that have demonstrated as little regard for the law and common decency as they have shown should not be underestimated. I know you're certainly no fool, and are likely well-aware and taking proper precautions. I felt I had a duty to mention this distasteful possibility, however...men as honorable, principled, and courageous as you don't come dime-a-dozen. Keep fighting the good fight my friend. My, and I'm certain many peoples', prayers & well-wishes are with you. Bravo, Sir, bravo! Strat

          Well, Strat, (a) blues is my favorite kind of music, (b) indie music is of course the only way to go, and (c) I'm not afraid of bullies. Plus if anything like that ever happened to me, where do you think the police would look?

      • by hvm2hvm (1208954)
        Yeah, right, they're ashamed... They do just what any other totalitarian style of government does: censor anything/anyone that can put an end to their reign.
      • by db32 (862117)
        You have provided enough proof that you are indeed a lawyer and act pretty convincingly human...but, now you are asking us to believe that lawyers have human parents? I think we need some proof here... If you are indeed human I think the most imporant work you can do is to prove that these other lawyers are highly evolved leeches that had absorbed human DNA. We wouldn't have to worry about their court room antics if we can get them all quarantined in genetic research facilities. Think of all the congres
      • Re: (Score:3, Funny)

        by Gorshkov (932507)

        being a lawyer and a gentleman

        And may god help you if I ever hear you dissing MY old profession .... military intelligence :-)

    • It is - read this (Score:4, Interesting)

      by Weaselmancer (533834) on Saturday January 17, 2009 @03:52PM (#26499403)

      Well, I'm not a lawyer but isn't it pretty much the modus operandi of lawyers who are paid insane amounts of money to toe the line in the interest of their clients?

      If you ever want to know just how sleazy your "toe the line" lawyers can get, read this. [gaspforair.org] It's an interview with a tobacco lobbyist. He's dying from cancer and decided to come clean on tactics. It's unreal.

      So yeah, the RIAA lawyers being creatures of the same stripe, sure. Filing all this crazy stuff is absolutely par for the course. Remember - every single day the laws stay in their favor, that makes them money. If they file these motions and it takes a week or a month to sort through then they've done their job.

      When you're dealing with a gigantic industry and millions of dollars every day, even a single five minute phone call to delay makes financial sense. Look at the SCO fiasco for another example. Baystar invested $50M in a dying lawsuit. Why? Delay. Every day there is any legal doubt over Linux is a day where spooked customers will go elsewhere. It was an investment, and one that has paid off many times over. These RIAA guys are just doing the same trick. Delay to keep the gravy train going.

  • by Adambomb (118938) on Saturday January 17, 2009 @02:28PM (#26498629) Journal

    Meanwhile, one commentator wonders why the tooth and nail opposition to broadcasting, since the professed aim of the litigations was to 'educate' the public?"

    Because they mis-spoke when professing their aims. Or that they mis-spoke/typed/approved from paralegal when they filed this.

    This whole ordeal is starting to feel like one of those theological arguments where a side insists on interpreting arbitrarily defined sections of text as immutable and others as requiring human context with themselves as the only interpreter. Interpretation may vary depending on the point they want to drill into peoples minds at the time.

  • by ScrewMaster (602015) * on Saturday January 17, 2009 @02:28PM (#26498637)

    since the professed aim of the litigations was to 'educate' the public?

    The RIAA (and the MPAA) have a stated goal of educating the public about copyright law and the evils of infringement. However, the actual goal is to "re-educate" the public, much as our totalitarian friends around the world "re-educate" those who disagree with them. In the RIAA's case, this absolutely does not include informing the public about their sleazy, if not outright criminal courtroom behavior.

    • The RIAA (and the MPAA) have a stated goal of educating the public about copyright law and the evils of infringement. However, the actual goal is to "re-educate" the public, much as our totalitarian friends around the world "re-educate" those who disagree with them. In the RIAA's case, this absolutely does not include informing the public about their sleazy, if not outright criminal courtroom behavior.

      Correct. They have as much interest in 'educating the public' as Hitler did in making the Jews "Frei" through "Arbeit".

    • by mochan_s (536939) on Saturday January 17, 2009 @02:48PM (#26498817)

      The RIAA (and the MPAA) have a stated goal of educating the public about copyright law and the evils of infringement. However, the actual goal is to "re-educate" the public, much as our totalitarian friends around the world "re-educate" those who disagree with them. In the RIAA's case, this absolutely does not include informing the public about their sleazy, if not outright criminal courtroom behavior.

      My psychology professor used to say that people make up their minds first and then look for reasons to support their decisions. This way people can rationalize anything as the right thing.

      The obvious purpose of the legal action was to spread fear and terror - like terrorists and serial killer do. Anyone out there, downloading a song, can be sued. There is no logic, no system - it's just random. This can strike fear to millions of people even though 10 people are prosecuted.

      Of course, we want to scare and terrorize anyone who downloads MP3 is not a "good" reason. So, an absurd reason of educating the public is made up. This is not a rational or logical reason and we don't require the Greek style logical discourse method of justifying a reason (OK, I have Philosophy 101 knowledge of these things, please correct me if it's wrong). So, we hear absurd reasons for doing things. Maybe this is not the most straightforward example, but the war of Iraq's reason was first WMD and then liberation. You almost felt that the leaders were just trying to find any excuse to justify and rationalize their actions.

      So, my point is why does anyone even bother anymore, questioning reasoning and such? People make up their minds about certain things first and build reasons for justifying them. So, let's not waste precious time and energy with snark remarks about educating the public and such. Just ignore them and focus on the matter at hand rather than going into illogical discussions about stated reasons for actions.

      • by ScrewMaster (602015) * on Saturday January 17, 2009 @03:09PM (#26498997)

        Just ignore them and focus on the matter at hand rather than going into illogical discussions about stated reasons for actions.

        I disagree. There's a substantial amount of logic and reason (not to mention pure black nasty evil) on the part of the RIAA and similar organizations. This deterrence campaign was well-planned, and implemented for a specific purpose. A purpose which, when pressed, they deny vociferously and cry "but we're only protecting the rights of the artists." That they've essentially failed in their quest to make file sharing and wide-scale copyright infringement appear too dangerous is irrelevant. They caused a lot of damage along the way, and are still. That needs to stop (or be stopped) but it will never happen as long as people accept what they're doing, or worse yet, see it as "their rights under the law."

        When a group dissembles to such a degree, and with such an utter lack of concern for anyone but themselves and their corporate masters, the difference between what they say and what they do is extremely important. That's particularly true when dealing with those (i.e., the bulk of the American public) who don't follow the issues here, and would naturally be inclined to take their statements at face value. It's vitally important these bastards be shown as the crooks they really are, and if this Webcast helps to do that then it's worth it. People will be able to look at what they've been claiming they're all about, and then see what they're really about, and perhaps draw some correct conclusions.

      • by mdmkolbe (944892)

        I don't think you're being fair to the serial killer. Most of them aren't after spreading fear and terror. They just like killing people.

  • the point.... (Score:5, Insightful)

    by budword (680846) on Saturday January 17, 2009 @02:45PM (#26498763)

    The point has never been to "educate" the public. The point has been to THREATEN the public.

    • by PMuse (320639)

      This (opposition to the broadcast) is very, very simple. They're about to get shellacked and they don't want anyone to see it any more than absolutely necessary. Much less do they want it spliced up and replayed on YouTube for eternity.

      Heck, there'll probably be a montage on The Daily Show in 24 hours.

  • by cortesoft (1150075) on Saturday January 17, 2009 @02:46PM (#26498783)

    What the RIAA is upset about is that people can download it for free. They don't want people pirating their court appearances!

  • by painehope (580569) on Saturday January 17, 2009 @02:48PM (#26498807)

    What one says is not necessarily what one means. What one professes to do is not necessarily what one intends to do.

    That is the credo of the modern world in which we live.

    It is disgusting and dishonorable. But it is a fact of life. One that I've had to learn the hard way. I'm honest to a fault, but my "bullshit detectors" have been calibrated by dealing with this world in which we find ourselves. Many people (especially scientists) find this hard, since there are many wrong answers and only one right answer in many circumstances. At other times, there are no right answers, just some that are less incorrect.

    And people wonder why I hate the world and would much rather deal with computers.

    • "politically correct moderators can suck my white pierced tattooed dick." - so do you really MEAN what your tag line says or is this bullshit too?

      • by painehope (580569)

        Yep. 2 gauge Prince Albert, 10 gauge Frenum. Shaft tattooed like a WWII-era bomb. Did the piercings myself (it's how I put myself through most of college, running a body piercing shop).

        And what's this "is this bullshit too?" bullshit? Are you making a reference to my original comment, or what?

  • by noidentity (188756) on Saturday January 17, 2009 @02:49PM (#26498825)

    The RIAA has appealed the order entered several days ago allowing the January 22nd hearing in SONY BMG Music v. Tenenbaum to be streamed over internet TV.

    They went on to explain this was because the court refused to give fair payment to the artists/performers (lawyers) for the massive distribution of the video over the internet.

  • by jcwynholds (765111) on Saturday January 17, 2009 @02:50PM (#26498835)
    The MPAA and RIAA have been using their legal team to "educate" the same way that loan sharks use hired thugs to "educate" people about their outstanding debts.

    Both the loan sharks and the **AA want their tactics and motives hidden. The message is intimidation.
  • by advocate_one (662832) on Saturday January 17, 2009 @02:53PM (#26498857)
    they want to educate the public, but don't want to be seen losing in court...
  • by arun84h (1454607) on Saturday January 17, 2009 @03:27PM (#26499179)
    just charge people to view the court broadcast? That way, no persons involved can come back and sue the viewers who got free "entertainment".
    • Re: (Score:3, Funny)

      by Opportunist (166417)

      Also, nobody would watch it.

      I mean, be honest, have the RIAA's members released anything recently worth paying for?

  • These guys have a one trick pony. Once we've seen the trick, no one will pay. ~kulakovich
  • by d_jedi (773213) on Saturday January 17, 2009 @04:03PM (#26499501)

    Probably because it's in the best interests of their clients. Yes, public education is a stated goal of their campaign.. and these videos may have a benefit to that. But not by much - as these legal proceedings in and of themselves do not make for particularly compelling watching.

    On the other hand, these videos would also assist defence lawyers arguing against the RIAA. There's also the potential for a 30-second sound byte of an RIAA spokesperson saying something stupid appearing on the 6 o'clock news. And the potential to pull short clips out of context (a la negative political ads).

    On the whole, I think it's understandable but disappointing for the RIAA to be opposing this.

    • Re: (Score:3, Insightful)

      by Sj0 (472011)

      I'd like to dispute that. Court proceedings can be very interesting. I've spent hours reviewing supreme court cases, and often even though the issues aren't ones I care about, the cases are interesting, because they give insights into the legal system.

  • by MarkvW (1037596) on Saturday January 17, 2009 @06:47PM (#26500931)

    As NYCL points out, you cannot appeal NONFINAL rulings of the trial court. Otherwise, people would be appealing EVERYTHING that happens in the trial courts, and the trial process would turn into an endless Dickensian jumble. A person has to wait until everything is over in the trial court before he or she can appeal. The RIAA didn't do that, so this "appeal" is doomed.

    Right now, the RIAA's lawyers are looking stupid (even to themselves) and may be worried that their clients will be pissed at them for making such a silly procedural blunder. They'll seek to convert their appeal into an attempt at interlocutory review. The problem with interlocutory review is that it is EXTREMELY difficult to get (for the same reasons stated in the first paragraph). Very generally speaking, a person can only get interlocutory review if they can demonstrate that the trial court's decision was soooo bad that its consequence would screw up everything afterward. The appeals courts will bend over backward to uphold the trial court's use of its discretion. A motion for interlocutory review is a really bad in this case because it has virtually no chance of success.

    This presents the really interesting question: Why is the RIAA acting so stupid? This appeal is a loser motion that will cost real money (and maybe elicit monetary sanctions) and will hurt the music company's public relations. Are the lawyers (not the client) making the decisions here? Is the client asleep at the wheel? Is the lawyer keeping the client in the loop so that the client can make informed decisions? Is the decisionmaker-client not any one person? Who is making the calls for the music company here?

    Often rich ligitants seek to financially exhaust poor litigants by making tons of motions. That strategy doesn't make sense in this case, because Nesson's team is like the Borg. They'll eat that stuff up.

    Generally, the strategic decisions are made by the clients and the tactical decisions are made by the lawyers. Maybe the lawyers reckoned that this is a tactical call that the lawyers get to make . . .

    This is a high-order blunder by the RIAA. I'm just wondering why . . . .

    The RIAA is, among other things, a joint venture formed by a bunch of music companies. The mandate of the RIAA, insofar as it is clearly expressed or understood, must be the product of negotiation and compromise and inertia.

    • As NYCL points out, you cannot appeal NONFINAL rulings of the trial court. Otherwise, people would be appealing EVERYTHING that happens in the trial courts, and the trial process would turn into an endless Dickensian jumble. A person has to wait until everything is over in the trial court before he or she can appeal. The RIAA didn't do that, so this "appeal" is doomed. Right now, the RIAA's lawyers are looking stupid (even to themselves) and may be worried that their clients will be pissed at them for making such a silly procedural blunder. They'll seek to convert their appeal into an attempt at interlocutory review. The problem with interlocutory review is that it is EXTREMELY difficult to get (for the same reasons stated in the first paragraph). Very generally speaking, a person can only get interlocutory review if they can demonstrate that the trial court's decision was soooo bad that its consequence would screw up everything afterward. The appeals courts will bend over backward to uphold the trial court's use of its discretion. A motion for interlocutory review is a really bad in this case because it has virtually no chance of success. This presents the really interesting question: Why is the RIAA acting so stupid? This appeal is a loser motion that will cost real money (and maybe elicit monetary sanctions) and will hurt the music company's public relations. Are the lawyers (not the client) making the decisions here? Is the client asleep at the wheel? Is the lawyer keeping the client in the loop so that the client can make informed decisions? Is the decisionmaker-client not any one person? Who is making the calls for the music company here? Often rich ligitants seek to financially exhaust poor litigants by making tons of motions. That strategy doesn't make sense in this case, because Nesson's team is like the Borg. They'll eat that stuff up. Generally, the strategic decisions are made by the clients and the tactical decisions are made by the lawyers. Maybe the lawyers reckoned that this is a tactical call that the lawyers get to make . . . This is a high-order blunder by the RIAA. I'm just wondering why . . . . The RIAA is, among other things, a joint venture formed by a bunch of music companies. The mandate of the RIAA, insofar as it is clearly expressed or understood, must be the product of negotiation and compromise and inertia.

      What they've done is abandon the "appeal" and file a writ of "mandamus or prohibition [blogspot.com]". (I.e. they couldn't make up their mind whether it was a writ of mandamus or a writ of prohibition, so they say "or". PS It looks to me like an application for a writ of prohibition.)

      • If the "writ of mandamus or prohibition" ever gets decided on the merits, it will be denied. The RIAA tries to read Rule 83.3 (the rule that governs recordings and broadcasts of a case) in a way to which it is not susceptible. Specifically, ...

        83.3(a) reads, "Except as specifically provided in these rules OR by order of the court ..."

        Rule 83.3(c) reads, "The court may permit ..." followed by a list of certain types of proceedings.

        The RIAA wants 83.3(c) to apply as a limitation to 83.3(a) "... by order of

        • Re: (Score:3, Funny)

          If the "writ of mandamus or prohibition" ever gets decided on the merits, it will be denied. The RIAA tries to read Rule 83.3 (the rule that governs recordings and broadcasts of a case) in a way to which it is not susceptible. Specifically, ... 83.3(a) reads, "Except as specifically provided in these rules OR by order of the court ..." Rule 83.3(c) reads, "The court may permit ..." followed by a list of certain types of proceedings. The RIAA wants 83.3(c) to apply as a limitation to 83.3(a) "... by order of the court .." However, 83.3(c) is a rule, and as such it applies to 83.3(a) "specifically provided in these rules". For example, this rule permits a court to allow a recording of proceedings without the need to resort to an order. Sorry folks, I have read too many SCO v. The World Court filings. The RIAA thinks just like SCO. Oh yes, SCO is now in bankruptcy. Here is the Court filing: http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf [beckermanlegal.com]

          Actually reading the rule? What a radical concept. How come no one told the RIAA lawyers about that?

    • Re: (Score:2, Funny)

      by rozthepimp (638319)
      Sounds like you are looking for an explanation from Matt "The Dentist" Oppenheim, who directs the HRO team and local counsel. Based on his demeanor in the Joel Tenenbaum deposition in this case, he appears to have gone from just plain nasty to borderline obsessive.
      • Re: (Score:3, Funny)

        Sounds like you are looking for an explanation from Matt "The Dentist" Oppenheim, who directs the HRO team and local counsel. Based on his demeanor in the Joel Tenenbaum deposition in this case, he appears to have gone from just plain nasty to borderline obsessive.

        1. Are the two concepts mutually exclusive?

        2. Why borderline?

  • Appealing an Order (Score:4, Interesting)

    by debrain (29228) on Saturday January 17, 2009 @07:51PM (#26501445) Journal

    The text of the appeal is:

    ===
    UNITED STATES DISTRICT COURT
    DISTRICT OF MASSACHUSETTS
    )
    CAPITOL RECORDS, INC. et al., )
    Plaintiffs, ) Civ. Act. No. 03-cv-11661-NG
    ) (LEAD DOCKET NUMBER)
    v. )
    )
    NOOR ALAUJAN, )
    Defendant. )
    )
    )
    SONY BMG MUSIC ENTERTAINMENT )
    et al., Plaintiffs, ) Civ. Act. No 07-cv-11446-NG
    ) (ORIGINAL DOCKET NUMBER)
    v. )
    )
    JOEL TENENBAUM, )
    )
    Defendants. )
    )
    NOTICE OF APPEAL
    Plaintiffs, Sony BMG Music Entertainment; Warner Brothers Records, Inc.; Atlantic
    Recording Corporation; Arista Records, LLC; and UMG Recordings, Inc., hereby give notice of
    their appeal to the United States Court of Appeals for the First Circuit from the Order dated
    January 14, 2009, authorizing the broadcasting of certain proceedings in this case over the
    internet.
    ===

    This text they've submitted isn't especially informative. It contains no grounds for the appeal, no citations of rules or statutes, and no factual background. I would charactise this want of information in a pleading to a circuit Court as "uncommon".

    To answer the questions as to "can they appeal an Order", one must reach into the bowels of civil procedure for Massachusetts, and the statutes governing the relationship between the Mass. court of the Order and the Circuit Court. I don't know these laws, but the general principle is that one may appeal (i.e. a request for review of, with a view to altering, the decision of a lower Court) only determinitive decisions-- i.e. those that end the case. The reason being that interlocutory (i.e. pre-emptive) appeals lead to all sorts of procedural nonsense, most heinously gross delay and ultimately undermining the exclusivity of the Court of first instance (i.e. where the proceeding was started) to make determinations in an expedient, coherent and effective manner. It also has a psychological and financial effect on non-institutional parties (i.e. humans), who are subject to litigation fatigue and often have limited legal resources that are, I would argue, most effectively used in a single concentrated hearing of the issues.

    The rare exceptions to the rule against interlocutory appeals would tend to be based on some sort of gross unfairness. For example, you may be able to appeal an Order that is effectively determinative, even if it is not procedurally determinative (i.e. where time is of the essence, and the lower-Court's Order will render moot any ultimate decision). For example, if a Judge orders that sugar remain on a ship, but leaving the meat on the ship will cause it to spoil, an appeal Court may issue an Order to have the sugar stored someplace that will preserve it. The other case that comes to mind is the patent unfairness of bias, such as a biased Judge making non-determinative decisions that nevertheless effect prejudice.

    This latter point (patent unfairness--not bias) would have application and merit, if the RIAA were able to show that a public viewing of this proceeding would give rise to prejudice or, alternatively, that it would cause incidental harm. I doubt the RIAA has the legal wits to bring up that argument, and even if they did it'd be difficult to reach the standard for showing (a) the Judge's Order was improper and (b) the harm to the RIAA is outweighted by the benefit to the public. An appeal Court does not generally have plenary jurisdiction, but only has a certain scope to review and change an Order of the Court of first instance. Changing a Judge's Order requires overcoming the presumption that the Judge was incorrect, with respect to either in a factual or legal conclusion. Again, without seeing the reasons of the RIAA, we can only speculate as to the basis for their appeal. They'd almost certainly need a gag order already in effect to get the circuit Court to reverse the Judge's Order to broadcast the proceeding.

    I suspect, based on what I've read here, that the RIAA is using this "appeal" as a fishing trip to delay the proceedings, and to punish the defendant with legal costs

    • Re: (Score:3, Informative)

      by jwilcox2009 (1175035)
      That is not the text of the appeal. That is the notice of appeal that they are required to file with the district court before their appeal can be docketed in the First Circuit. See Federal Rule of Appellate Procedure 3, 12. It has no argument because you do not present your argument when filing your notice of appeal; you file it later with your brief on the merits according to the schedule set by the First Circuit.
      • Re: (Score:3, Interesting)

        by debrain (29228)

        Thank you for clarifying. I suspected that some sort of brief with reasons would have to be filed by the RIAA. My post was misleading in implying that this notice would be the only filing by the RIAA for this appeal. I wouldn't expect that the RIAA's counsel to appear (or, nowadays, be able to appear) before the circuit Court without filing written submissions.

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