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."
Yay, we get Soviet Show Trials now in America (Score:3, Insightful)
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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.
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Much the same way that Americans got all excited about fighting terrorists because of the Sept 11 attacks (killed approx 3000 people in the USA in the last 9 years), but don't put nearly as much time, effort, or money into fighting heart disease (killed 652,091 in the USA just in 2005)
People do not act rationally when they are afraid.
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It is a threat to your liberty insofar as it is used against American citizens. So far it has not. Whether it will is an open question.
It is a boon to your liberty for reasons that caught me by surprise when it was first explained to me. My partner, who has done tours of duty in the middle east, explained that everyone in the world knows about Gitmo. Its mere existence persuades people to talk, even to help
Re:Yay, we get Soviet Show Trials now in America (Score:5, Insightful)
There's a word for using this sort of "deterrent". That word is "terrorism".
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Re:Gitmo (Score:2)
Did they pay for the rights to the music they were so proud of playing 24 hours a day at high volume? "Public Performance!"
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Well, possession of the gavel is 9/10ths of the law. As fucked up as that is.
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And... (Score:2)
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.. (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.
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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... (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.
Can they appeal? (Score:3, Insightful)
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Sure.
The more important question is "Can Tenenbaum appeal and win?"
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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 app
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What have you got against whelks?
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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? (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.
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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
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
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"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; "
I believe that this is part of the problem with the legal system in general, and it is part of the problem with copyright law specifically. Judges and juries are called on to decide some narrow parameter of law, then RIAA and company turn around and apply that narrow parameter to anything and everything that remotely resembles the original case.
Govern
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I believe that this is part of the problem with the legal system in general, and it is part of the problem with copyright law specifically.
On the contrary, it is the function of the legal system. Individual parties in individual actions are not referenda on the laws. It is the function of the legislature to promulgate and maintain the laws. Courts are merely empowered to apply them, consistent with the recognized hierarchy of laws that sometimes results in judicial modifications and strikings.
It's a no-win situation. When the courts judicially modify the laws in an unpopular way, it's "judicial activism", and the people beg Congress to rew
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The trial should not be webcast because the RIAA's arguments are unpopular and public relations are unusually critical to their operation.
The trial should be webcast because the RIAA's arguments are unpopular and public relations are unusually critical to their operation.
How do you judge a case where both sides make the same argument?
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By looking at the rules for when courtroom proceedings may be recorded and broadcast and determining (a) whether there's any argument that might allow it, (b) whether any party has made that argument, and (c) whether irreparable harm and/or undue influence would result from allowing it.
In this particular case, the buck stops at (b). There is a set of exceptions to the no recording rule, but no one has made a request that is couched in one of the allowable exceptions. Assuming that the defendants did make
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1. Media meddling, hounding, and general drowning out of what's actually happening.
I fail to see how this is fundamentally worse than having reporters in a courtroom. If anything, broadcast should have the opposite effect; without it, the media has total control over what is and is not disseminated prior to a ruling.
2. Jury contamination. ...preliminary proceedings, stipulations, and rules of evidence are manifestly not followed by bloggers or even professional journalists.
The broadcast in question only involved oral legal argument, tho' - nothing the jury wouldn't see.
3. Witness tampering. Witnesses are supposed to present their testimony as preserved by their role in the proceedings, outside the influence of the media.
Again, a reasonable point made moot by the fact that we're only talking about oral legal arguments.
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?
In a specific case, I'll grant you there's no great advantage. In a broader sen
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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?
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So by your reasoning all proceedings should be in camera? The Constitutional guarantees of public trials should not be whittled down until they can be brushed off like an errant bit of dandruff from an Oxxford suit.
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1. In camera doesn't mean what you think it means, and no, that is wholly incorrect, regardless of your definition.
2. Public trial doesn't mean what you think it means.
3. This case is neither in camera nor a secret (i.e. not public) trial.
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Your entire argument is without merit. It proceeds from the onset from a false premise.
By "broadcast", one presumes "what's actually happening" will be made transparently obvious.
No, because the actual proceedings in the courtroom are not the complete picture. Stipulations, preliminary motions, and other issues dispensed with would not be covered, nor would jury deliberations. You neglect entirely the fact that the bulk of public involvement with the broadcast would be presented through the media, which is the issue you're responding to.
Your markedly unparallel response speaks for itself. Undu
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".
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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.
Is a court required to resolve all issues raised by amici? Or rather, doesn't a court have discretion to accept or refuse an amici brief? Otherwise, we could deluge any court case we wished with thousands upon thousands of amici briefs with unrelated issues, and require them to exercise their "responsibility to resolve those issues". I can't even seen a due process argument for requiring them to respond to amicus briefs, considering amici by definition aren't parties to the litigation.
Re:Can they appeal? (Score:4, Interesting)
Is a court required to resolve all issues raised by amici?
No but when it's a First Amendment, freedom of the press, public's right to know, issue, raised by most of the nation's major press organizations, and incorporated by reference in the defendant's brief, yes the Court must resolve the issue, not ignore it.
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(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.
That's an harrowingly narrow-minded view of what our first amendment protects -- and worst of all, of governmental accountability. This is a government court, not a shareholders meeting (Even if it were a shareholders meeting, I have the right to attend, as I pay my taxes and am a legal citizen of this country). If they have a way to allow me to attend this as an observer without interrupting the proceedings, it is important for me, from an educational point of view, to see where the law on this stands.
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.
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Since this decision does seem to be bogus, can Tenenbaum appeal?
He can make a motion for a rehearing en banc (before the whole First Circuit, which would just add 3 more judges into the mix), or he can try to get the US Supreme Court to hear it.
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My understanding of a Mandamus Order (having been through one) was that it "compelled" action.
How the hell does a court provide an "advisory mandamus" order? Isn't that an oxymoron? An advisory can't compel action?
Sorry ... I know you are on the other side of the argument, but "perhaps" you can explain what an advisory is as I don't know that we have that concept in Canada?
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My understanding of a Mandamus Order (having been through one) was that it "compelled" action. How the hell does a court provide an "advisory mandamus" order? Isn't that an oxymoron? An advisory can't compel action? Sorry ... I know you are on the other side of the argument, but "perhaps" you can explain what an advisory is as I don't know that we have that concept in Canada?
We don't have that concept here, either, in my opinion. There is no statute authorizing it and it expressly contradicts (a) what mandamus is, and (b) the constitutional limitation on the power of the federal courts restricting them to decision of "cases and controversies".
wait for the bootleg... (Score:5, Funny)
Wait for the bootleg, it'll be on all the torrents in no time
Who to blame (Score:5, Insightful)
Re:Who to blame (Score:4, Insightful)
You forgot the obligatory "Blame Canada" !
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I just blame America, much simpler than trying to figure out your politics or laws.
Re:Who to blame (Score:4, Interesting)
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 (Score:2)
Would not that constitute a court remanding a case, then advising how to rule?
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What the hell is an "advisory mandamus"???
I've never heard of it, and it sounds contrary to (a) what a writ of mandamus is supposed to be about, and (b) the judicial authority of a US federal court which is only allowed to decide 'cases and controversies'.
If it's expressly authorized by the US Supreme Court, or by a statute, then I'll admit that it exists; if not, I stand by my position that it does not.
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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. (Score:5, Interesting)
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. (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.
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Welcome - you must be new here.
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But as an ignorant techie, what I want to know is why has the RIAA been allowed to bitch slap federal courts across the country with impunity? It would seem to me that the judge in this case is actually trying to widely disseminate the tactics of the RIAA for other jurists to consider. A legal countermeasure to the bastardization of the
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Your question makes no sense. What RIAA tactics are being disseminated? There is nothing to this issue but court procedure, despite Slashdot's (and your) best attempts to make it something else.
This ruling has zero impact on the RIAA's legal theories, evidence, argument, or substantive claim in any way, shape, or form.
All it says is that there is a rule prohibiting recording and broadcast of active court procedures, except in certain special circumstances. The judge tried to replace the certain special c
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I'll slow this down for more clarity.
In the context of the larger picture, the judge, I believe, was trying to use a court rule in such a way as to serve the greater public interest by exposing their (RIAA) cross jurisdiction abusive machinations.
Kind of like how an appeals court will dodge a constitutional issue in a New York minute in favor of some minuscule meaningless procedural misstep, or obscure legal theory derived
Re:NYCL's analysis is just... wrong. (Score:5, Interesting)
i'm sorry but as a fellow attorney (NY too!) i have to correct NYCLs analysis. Advisory mandamus has its roots in the Supreme Court's reference to mandamus review of "basic, undecided question[s]." Schlagenhauf v. Holer, 379 U.S 104, 110 (1964); see Horn, 29 F.3d at 769; see also 16 Wright et al., supra, 3934. It is appropriately invoked when the action or inaction of the district court presents an issue of great importance and novelty, and one the resolution of which will likely aid other jurists, parties, and lawyers. See Horn, 29 F.3d at 769-70 (citing In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982), and In re Bushkin Assocs., Inc., 864 F.2d 241, 247 (1st Cir. 1989)). To summarize : They are allowed to issue advisory mandamus in cases such as these.
I'm now aware the 1st circuit has this line of cases. The question is whether a statute expressly authorizes it, or whether the US Supreme Court expressly authorizes it. If neither, then I stand by my position that it does not "exist". If so, then I will have learned something.
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I would look up Schlagenhauf v. Holer on Lexus/Nexus for you and paste its entire contents here, but I don't have and can't afford a Lexus/Nexus account and even if I could, they would probably claim copyright over the text and sue me.
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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).
Simple solution (Score:3, Funny)
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So, in layman's terms (Score:2)
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?
Looks fairly reasonable (Score:5, Insightful)
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.
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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?
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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
It ain't just the First Amendment being trampled. (Score:2, Interesting)
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 la
Did you even read your own link? (Score:5, Insightful)
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.
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Please excuse my ignorance of the American trial rules (I'm in the UK and over here you can't even take a photo during a trial). Would an open trial mean that a person could go in with a dicta phone and record the trial anyway? I've seen plenty of excerpts from American trials on the news. Do you have to be a member of the press or get consent to film or record? Just interested as I've never really understood what can and can't be done.
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Would an open trial mean that a person could go in with a dicta phone and record the trial anyway?
No. Recording of any kind is prohibited without the express authorization of the judge.
I've seen plenty of excerpts from American trials on the news.
These are either culled from completed trials or obtained by professional journalists with media passes, who are then authorized to make limited recordings for the news, the exact rules for which vary from jurisdiction to jurisdiction.
Do you have to be a member of the press or get consent to film or record?
Short answer: yes. Long answer: no, but you need a compelling reason to get the judge's permission to do so, and the judge in nearly every jurisdiction in the country is bound by local, st
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I seem to recall the OJ trial.
1. The trial was by far the most publicized trial in American history and makes a poor reference point, as the extreme outlier.
2. Only a small portion of the actual trial was broadcast. Most of what you recall is media coverage and punditry.
3. The trial judge was strongly criticized for allowing that level of media interference (and specifically for the improper influence the media had in the proceedings--precisely the problem with the concept of allowing recording devices in the courtroom).
4. The parties
In the judges' defense ... (Score:2)
Judges seem to do that lately (Score:2)
Issue rulings "just for this case". Heaven forbid it should ever establish a precedent.
I miss rule of law as a general principle.
The rules, laws and due process are too limiting (Score:2)
The executive, legislative and now the judiciary branches are just making up new rules as they go along. No longer are they even attempting to "interpret" law and procedure. They are just ignoring law and are not being held to account for it. How can it be that we are unable to hold them to account for ignoring the law?
You need to understand how things work... (Score:2)
Federal judges serve for life and basically have no check or balance on their power, save a higher court, or a Constitutional amendment.
When a judge leaves the court it's usually because they can't or aren't going to be moving up. IE: district judge to appeals court to supreme court. At some point they cash in for their years of "service" and it's almost ALWAYS to go into the corporate world. The entertainment industry, both music and video, employ a shit ton of lawyers. It wouldn't surprise me if this
NYCL where do i donate ? (Score:2)
give us donation links to fight this shit.
and in addition, why arent you still running an organization to fight this thing ? or are you working for eff or any others ?
Re:No Justic in the legal system. (Score:5, Insightful)
*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. (Score:4, Insightful)
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.
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Don't harsh my high, man. Please permit me my Shakespearean romantic fantasies.
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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. (Score:4, Interesting)
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. (Score:2)
(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.
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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 ch
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And what if another faction is right? (Score:2, Insightful)
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
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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;
Christianity doesn't reward ignorance.
Re:No Justic in the legal system. (Score:4, Insightful)
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.
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I wouldn't say that it's not relevant, or out of context, and I didn't think that mine was out of context either. The fact that Cor10 preaches to people who have already heard the word is exactly the reason I chose it, as I felt it was a good response to your post, as it demonstrates that once you hear the word, you should know that you shouldn't turn back to ignorance, which is pretty much what you just said in this post. Of the three verses you referred to, they are stating that you shouldn't tempt the
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Sorry, maybe my choice of words in the underlying statement was incorrect.
What I wanted to express is that someone who has never heard the word of the Lord cannot sin, if I understood the person I originally responded to correctly. Thus, closing your ears and not wanting to hear anything (IMO one of the best ways to display not only ignorance but also deliberate ignorance) would be rewarded.
My problem with "testing and trying" God stems from the original problem scientific research has with "divine" explana
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I'd like to think that, in the event of an omnipotent and omniscient deity, such a being could distinguish from genuine and intentional ignorance and act appropriately... If I close my ears and eyes to the world and learn nothing I am a fool, but if I try and fail to learn everything I am mortal.
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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;
Christians should swim in the ocean on cloudy days?
Stupid stupid stupid fallacy (Score:2)
Equality != justice, unless everyone deserves the same. Otherwise why not punish the innocent along with the guilty?
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Guess the right religion? I thought it was already well known that the Mormons were right all along.
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Brother, that's one of the most beautiful, insightful things I've ever read, anywhere.
I don't know if you did that on purpose, it doesn't matter, but I'm impressed. You just made a friend for life.
Not just the Athiests (Score:2)
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?
Well, there's other options you know. Such as Deism. [wikipedia.org]
It may be that there is a mind far surpassing our own that will understand what it is we've done and why we've done it - a perfec
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Then punishing people who do not have this "conscience" is unfair because they don't know the rules.
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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.
Re:AC (Score:2)
Then they'd know who to pillory with mods.
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(-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."
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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.
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There is still a difference between someone saying you did something and direct and undenyable proof, in video and audio, of the trial. It's much easier to play on the emotions of people when they get to see witnesses with tears in their eyes instead of just the hard facts of a verdict.
Not to mention the various really ridiculous lawsuits that come to civil courts these days. Then again, this IS already on court TV, so where's the harm? Maybe it would make a few bozos think twice before making complete fool