Appeals Court Says RIAA Hearing Can't Be Streamed 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."
duh.. (Score:5, Informative)
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:Yay, we get Soviet Show Trials now in America (Score:2, Informative)
Re:And... (Score:4, Informative)
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.
Re:NYCL's analysis is just... wrong. (Score:5, Informative)
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:Can they appeal? (Score:5, Informative)
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? (Score:4, Informative)
I hear the phrase used from time to time, but I just can't seem to apply the metaphor to a civil court proceeding in my head. What, precisely, do you see as the negative implications of broadcast?
Interference on three grounds, for starters:
1. Media meddling, hounding, and general drowning out of what's actually happening. It's like televising the halftime team strategy meeting--it can't help the team do any better, it can only stir the pot in the audience, worsening the integrity of the event, inviting disruption and distraction in the courtroom, and resulting in the passage of bad information to the public. Look no further than the submitter's awful commentary on this administrative matter for the kind of undue influence exerted; they're willing to throw the baby out with the bathwater just because the party "benefiting" immediately happens to be a corrupt corporate regime, rather than looking at the whole picture.
2. Jury contamination. Extensive media coverage makes it nearly impossible for the jury to act based on the narrow parameters for which they are assembled; the kinds of journalistic advocacy composed outside the courtroom unfairly prejudice the jury's understanding as the case is fully presented to them in court. A good legal team knows the proper balance of what to present and what to handle outside of the jury's presence--and preliminary proceedings, stipulations, and rules of evidence are manifestly not followed by bloggers or even professional journalists.
3. Witness tampering. Witnesses are supposed to present their testimony as preserved by their role in the proceedings, outside the influence of the media. Detailed and verbatim recordings of proceedings, aired immediately, make it nearly impossible to rely on witness testimony. Witnesses not only have a general idea of how the trial is advancing, but have the specific opportunity to craft their testimony around earlier testimony that court procedures go to great lengths to keep away from witnesses.
You can go on from there into a whole litany of issues about advocacy, representation of clients, and so on.
I'm only able to see the advantage of greater transparency.
How does broadcasting the proceeding as it happens add to transparency, as opposed to making the record available after the fact, as is normal practice? It merely increases exposure, which is not itself a virtue. There's a reason that you don't publish drafts of scholarly works in most cases, unless you're circulating it for input. That's exactly the same reason you don't put out incomplete pieces of the trial.
It's really not a situation involving more or less transparency--it's about PR. The defendants want to stir the pot and have the case tried in the court of public opinion, where it's obvious they will win. The RIAA labels are about as unsympathetic as you get. It doesn't make the process any more fair, open, transparent, or accountable to broadcast trials. Any of those issues will appear in the transcripts and trial records, and if they're not in the transcript, they wouldn't be in the broadcast. It just makes the public shitstorm easier to build in any given case, and the courts are intentionally supposed to be insulated from that.
I also have trouble with the idea that this is an important enough issue to warrant an extraordinary writ.
There are few things more serious than the bounds of discretion of a trial court. The review and the opinion isn't about broadcasting the trial, it's about the judge's application of the rules of court. Failure to apply the law correctly is more or less the only reason for reversal in civil appeals.
or even particularly novel
Really? Do you know of any trials broadcasted live in their entirety?
It's incredibly rare; it's outright prohibited in criminal trials, and in most places, civilly, as well, subject t
Re:Can they appeal? (Score:5, Informative)
by making a ruling that NYCL says isn't legally recognized and is explicitly only "advice", can the judge merely treat it like any "friend of the court" filing rather than a court ruling?
I did NOT say that the District Judge can treat it like a "friend of the court"; she is bound by it, even if it is wrong. I did not say the 1st Circuit's ruling "isn't legally recognized". I said I believe it is erroneous. It has the force of law unless and until it is overruled or reversed.
Re:Can they appeal? (Score:5, Informative)
yes, the district court must follow it. NYCLs analysis was essentially, trolling. I realize NYCL is popular here, but that does not make his reasoning correct. NYCL stated : (a) it contradicted the plain wording of the district court rule, (b) it ignored the First Amendment implications, and (c) there is no such thing as 'advisory' mandamus or 'advisory' anything -- our federal courts are specifically precluded from giving advisory opinions. (a) is plainly incorrect because the opinion was from a higher court -- they do not need to follow the wording of a lower court - they can -- and do -- explicitly contradict it. hence the term "appeal" or "appeal to a higher power who can disagree with you if it so desires". (b) is incorrect because there is no First Amendment implication to publish. The court is still allowing you to speak in front of it, you do not have any republication rights in the 1st amendment. its free speech not free license to republish for a mass audience. My reasoning would be similar if i were to judge this case - publishing a stream would risk the trial turning into a circus. You may disagree with this (as NYCL did) but it does not make the reasoning incorrect or invalid. (c) is incorrect for all the reasons i have layed down in my later post. basically SCOTUS allows advisory mandamus rulings.
1. The 1st Circuit exists under the law, and must follow the law.
2. The defendant raised his constitutional right to a public trial, and the First Amendment was raised by the amici; the Court had a responsibility to resolve those issues, not ignore them and say that they did not exist.
3. The US Supreme Court has not authorized "advisory mandamus". The case you cited is completely distinguishable. It dealt with the power of a court to decide an issue which had become mooted. It did not create or authorize a general "advisory mandamus" doctrine which freed the courts from the "cases or controversies" limitation on their powers, or which redefined the ancient writ of "mandamus", which has existed for around 600 years and has a well understood meaning.
The fact that I simplify things here for my non-lawyer friends does not make it "trolling".
Re:No Justice in the legal system. (Score:2, Informative)
If it's music and poetry you're after, then:
I am the very model of a modern-day solicitor,
The type that you'd display to an enquiring Martian visitor.
In all the courts of judicature I delight to play and sing
And I know everything there is to know about conveyancing.
In wills and probate I am versed, 'cos death is where the future lies,
And everything that humans do I'll presently computerize;
In that respect my hopes and dreams will scarcely need enlarging, for
There'll be no limit to the items I can then be charging for.
I rip you off and lose your deeds and spend your cash and lie to you
And if you write in to complain I doubt if I'll reply to you.
The simple I make complex till there's nothing clear and plain in it.
I write you yards of gibberish, then charge you for explaining it.
And though you sit in silence and observe your savings dwindle, you
Still give me full discretion both to fleece you and to swindle you.
And nervous children point at me and ask their mothers "Is it a
Foul monster from the Black Lagoon?" "No, dear, it's a solicitor"
But while our legal system's still a cesspit and a mockery
And England's not a garden but a weed-infested rockery;
And while we hold each problem must contain a germ of fault in it
And while we seek to heal a wound by rubbing loads of salt in it;
And while we're bound by precedents (that's cock-ups folk have made before)
And while the courts are all for sale and there's no justice, only law,
And while the graft and cheating in the system are implicit - ah!
There'll always be a living for the modern-day solicitor.
For trouble is my business; so, however things may run with you,
You know that they'll be ten times worse when finally I'm done with you.
Although you'd rather take your chances with the Grand Inquisitor,
You know that you're in trouble when you go to a solicitor.
Credit goes here [lawandmore.co.uk]
Re:NYCL's analysis is just... wrong. (Score:3, Informative)
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).