Thursday, April 16, 2009

Appeals court rules hearing may not be web cast, in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Appeals Court has ruled that the oral argument in the court below could not be webcast.

Ironically, the appeals court's own oral argument was streamed over the internet in mp3 format.

The appeals court conceded that the case was not a traditional case for a writ of mandamus, but invoked "advisory mandamus". It went on to find that the district court rule barred the webcast that the Judicial Council wasn't required to give notice of its resolution, and that the Judicial Conference resolution, although not binding, was entitled to great deference.

The court held that there were no constitutional issues involved.

In a concurring opinion, Judge Lipez stated that the rule should be reexamined in light of technological advances since its adoption.

April 16, 2009, Decision, Barring Webcast

[Ed. note. Sorry but I do not understand the First Circuit's reasoning one iota. During the oral argument, the judges made sense; but their written decision makes no sense to me at all. It seems to me that (a) the rule clearly on its face allowed exceptions, (b) the judicial council resolution was of no force and effect, (c) the judicial conference resolution was of no legal force and effect, (d) there is no such thing as "advisory mandamus", and (e) the First Amendment certainly was implicated. -R.B.]

Commentary & discussion:

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

20 comments:

Anonymous said...

Unbelievable! There is simply no other way to interpret "or by order of the court," but to allow for exceptions. The judges clearly took the easy way out by deciding that, without guidance, they need to stick to the, 'narrower interpretation,' of the rule. This decision may not be important to the merits of the case, but the issues presented are important enough to warrant further appeal.

lost in thought

Anonymous said...

I don't know the terminology, but was this hearing in front of the whole court and if not can it be asked that it be reheard with the whole court?

TomasG

Ray Beckerman said...

Dear Anonymous TomasG

1. The terminology is "en banc".

2. No this was not en banc.

3. Yes they could and should ask for it to be reheard. This panel was wrong.

nonzenze said...

Suggested reading:

* "Supervisory and Advisory Mandamus Under the All Writs Act,"
86 Harv L Rev. 595 (1973).

* Wright & Miller, Vol 16, S3934.

Advisory mandamus is obscure but don't get ahead of yourself with "does not exist".

PS. Agree with you entirely on policy grounds, but 83.3 isn't too kind on statutory grounds. Keep up the good work!

Anonymous said...

Really, there is no such thing as advisory mandamus? Perhaps you should inform Congress, the Supreme Court, and the appellate judges of the First Circuit, and the authors of Federal Practice & Procedure, all of who categorically disagree with you. But given the magnitude of incorrectness of your April 8th predictions regarding this issue, I guess I shouldn't be surprised that you were wrong on this point too.

-abcdef

Ray Beckerman said...

Dear nonzenze

Has the US Sup Ct ever sanctioned "advisory mandamus"?

Alter_Fritz said...

I have a problem with understanding this reasoning of Judge Selya. He writes in the introduction as footnote that:
""Narrowcasting" and "webcasting" are two different things. Narrowcasting is the recording and live transmission of ongoing events over the Internet to a selected audience. Webcasting is the recording and live transmission of ongoing events over the Internet to a broad, undefined audience."

In my humble opinion this description shows that this judge "did not get it" ("it" here is modern technology).

How is the "internet audience" undefined?
"Everyone with an internet access to a providing server (like the one from the 1st circuit for example) that allows connecting from any IP" is a well defined term.
And how is an audience that pays for that access to that server more defined? (he calls it narrowcasting yet it is the same technology involved and used only with the difference that the connecting IP must show some agreed upon credential. (username and password or something like that for example)

If we assume that every "broad undefined audience" individual (the webcast thingy receiving guys like me that don't have the means to pay for air fair to attend the hearing physicly in person) pays one cent to the server operator, then just because that person payed this one cent it is no longer broad?

Is what the 1st circuit did with their audio "broad" because they did not charged me for downloading it?
Or is it "narrow" because their server was painfully slow to serve the file to me? ;-)

Is pacer access "broad" because it allows everyone with a credit card that is willing to pay for access to pages?
Or is pacer a "narrow" thingy since I have no credit card and can therefor not use it and must rely on guys like Ray or Mr. Sheffner to make the papers availabe elsewere?

I don't see the logic in this only 3 judges panel reasoning that "narrowcasting" (i.e televising it ) to another room in the same building is allegedly something different then transmitting it unedited as it is to a house across the street where Jon Doe likes to follow the proceedings since he is (lets say for example wheelchair bound) and access to the courthouse is too tiresome for him!

What happens when so many people show up at this April 30 hearing that Judge Gertner's courtroom is not large enough to hold all people?
When she then decides to use the cool equipment she reportedly has in it to transmit the argument to a room one floor below or maybe into the entrance of the courthouse if that would be more feasable with respect to crowd gathering issues? Wouldn't THAT be a "palpable error" in aplying that ominous rule 83.3 too?
By the reasoning of this 3 judges panel THAT would also not be allowed since "or by order of the court" just don't mean ANY kind of order but only those few mentioned in the rule. And the rule does not mention an order allowing it "because of overcrowding of the courtroom", but only for ceremonial proceedings for example if I remember correctly.


I think this "en banc" thingy might be something that Tenenbaum should try here. In my unimportant opinion the 3 judges panel reasoning and interpretation of the wording of the rule makes no sense. (no matter if we view it in the light of this fantastic internet thingy or just traditionally with plain old radio reporting)

Ray Beckerman said...

The post from Anonymous abcdef is no doubt a troll from the RIAA. However, I published it as self punishment, since I was so far off base in my prediction as to the outcome.

I am interested in the "advisory mandamus" doctrine. I am aware that it exists in the First Circuit. However, I am not aware of the US Supreme Court expressly authorizing it or of any statute expressly authorizing it.

Perhaps Anonymous abcdef can illuminate me on that. If not I'll assume he was making it up when he alluded to the Supreme Court and to Congress. If he can point to a statute which expressly authorizes it, or a Supreme Court decision which expressly authorizes it, I will retract my statement. If he cannot, then I stand by my position that there is no such thing.

Anonymous said...

It is this baseless conflation of pro-copyright support with somehow being a recording industry shill that leads you down these paths to incorrect predictions and unsupported allegations that authorities don't exist when less than 5 minutes worth of research would save you the embarrassment resulting from such silly statements. If I can find them in under 2 minutes, so can you.

--abcdef

Anonymous said...

The Common Man doesn't deal with complicated issues and obscure Latin terms to describe American laws. He does wonder why English isn't good enough for our legal language, but that's not his issue today. Justice is.

Justice should not exist in secret. Yes, in 1776 the Internet did not exist even as a glimmer in Al Gore's mind. Justice was available for observation in the most open form available at the time - the fact that the common man (or woman) of that time could sit in the court, hear it dispensed, and by virtue of the Free Press, report on it afterwards for those unable to attend themselves.

Today the world has changed radically from those early days, but clearly the courts have not kept up. 50 years ago there was no such differentiation between broadcasting and narrowcasting. The channels (think of radio or television channels) were very few and therefore were distributed as widely as possible. And as a result, almost no cases could be broadcast because the resources were far too scarce to offer them up.

That is not the case today. Every single case being heard in every courtroom could be captured in video and sound and offered up to every user who cared to watch it. This would also provide an invaluable record to future generations of lawyers, judges, legislators, and the public at large, because the amount of detail preserved in an full audio-visual recording is far beyond that possible from a court reporter's transcript.

And we SHOULD be doing this already, and we're NOT doing this already. Why? Who has something to hide here?

This man charges that the very participants in these cases from judges to lawyers are too timid to allow their proceedings to be seen by the great unwashed public, despite how these decisions can destroy lives as easily as they dispense justice. This man says that it's a utter disgrace that this issue should even be being argued. The answer is so simple, and only cowards fear it.

{The Common Man Speaking}

Ray Beckerman said...

I note that Anonymous abcdef was unable to find a US Sup Ct case expressly authorizing "advisory mandamus", or a statute expressly authorizing "advisory mandamus". So I'm probably correct that it doesn't exist.

But abcdef is clearly an RIAA lawyer, therefore not well schooled in the art of legal research.

So I'll still have to look it up myself to be sure.

Anonymous #5 said...

@Common Man

Because law is boring, they need cool sounding Latin words to spice it up.

For the lawyers, I’m joking.

Anonymous #5

Anonymous said...

Ray, abcdef is partly correct. He could be a normal internet troll and not an RIAA-funded internet troll. There certainly are a lot of trolls out there.

-yt

Ray Beckerman said...

Dear Anonymous yt:

I've received a few other comments from this one; guaranteed it's an RIAA lawyer. No one else is that (a) stupid or (b) cowardly.

Ray Beckerman said...

Based upon a quick preliminary review of the law:

1. There is no US Supreme Court decision authorizing "advisory mandamus".

2. The Schlagenhauf case does not authorize "advisory mandamus".

3. There is no statute authorizing "advisory mandamus".

4. The First Circuit appears to be the 'hotbed' of "advisory mandamus".

If anyone has any information to the contrary I would love to see it.

This is kind of academic, since obviously the court would have been empowered to consider the order on a duly certified interlocutory appeal, but the RIAA trolls think I'm wrong, so they should be able to prove that I'm wrong.

Anonymous said...

I, my non-lawyer self, can't see how the court ignored constitutional issues. We the people are entitled to this information, what happens in this court.

Here the appeals court is telling us what format we're allowed to get that information in. And that is contrary to the First Amendment.

The First Amendment might conflict with other constitutional rights, but regardless, to claim there's no constitutional issue seems plainly wrong.

kay

Anonymous said...

considering the rather mundane nature of the hearing on the motion, it would seem that "webcasting" of the hearing is not an issue of great "public importance" to sweep it under 28 USC §1651. it doesn't seem to me to be the blockbuster issue for the appeals court to interfere with the district courts discretion. the public policy arguments don't carry much weight these days. Maybe back in 1980s they did, but in the day of social networks and youtube where everything is online and you should almost expect anything you do to end up online in some form.

Anonymous said...

According to Federal Procedure, Lawyers Edition (updated for 2008), "advisory mandamus" is traced back to the Schlagenhauf v. Holder, 379 U.S. 104 case.

Anonymous said...

i simply don't see how "webcasting" would be manifestly unfair, would do injustice to the parties, or be an omnipresent "block" (or should significantly alter any parties behavior) to the normal execution of hearings and proceedings in court. Is it really that behaviorally altering to know that you are being filmed when all you are doing is speaking for your client in a courtroom. I guess I don't know because I'm not in that situation, but it doesn't seem to me that this is an issue of justice or unfairness.

Anonymous said...

I think reading parts of Green v. United States of America (US Sup. Ct. 2005) The question comes down to, did the district court exercise an permitted usurpation of power that is not permitted by their local rules. I think the clear answer to that question is NO. The district court has a clear interest in it's own ministerial processes. I don't think it satisfies the test of being "exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion, [that justifies] the invocation of this extraordinary remedy."