Saturday, January 17, 2009

RIAA Files Petition for Writ of "Mandamus or Prohibition" with 1st Circuit Court of Appeals in SONY BMG Music v. Tenenbaum

In SONY BMG Music v. Tenenbaum, the RIAA has filed a petition for "Writ of Mandamus or Prohibition" with the United States Court of Appeals for the First Circuit to stop the televising of the January 22nd argument, authorized by District Judge Nancy Gertner.

Additionally it has made a motion for expedited consideration of the motion or for a stay.

Petition for Writ of Mandamus or Prohibition
Motion for expedited consideration or stay

[Ed. note. In my experience it's pretty bizarre to call it a writ of "mandamus or prohibition". They apparently don't know which it is. Had they been paying attention in law school they would know that it is a writ of prohibition. -R.B.]

Commentary & discussion:
IPTV Evangelist
Copyrights & Campaigns
Heise Online (German) (Czech)
Online Daily Examiner
Sterling Agog

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


Diabolos said...

In their defense, I'm a 3L and we never talked about that in class. That being said, mandamus is when you are ordering a government official to do something (Like Burris' suit again the Illinois secretary of state.) They should have know, should have looked it up, or should have asked someone. But I don't think this is the kind of thing that's typically covered in law school.

raybeckerman said...

Dear Diabolos, it is hard for me to imagine a law school curriculum which omits to discuss the ancient prerogative writs of prohibition, mandamus, certiorari, and habeas corpus. If you are right, shame on your law school for overlooking the legal remedies most intimately tied to the very nature and being of our democracy. But I am skeptical. Perhaps you, like the RIAA lawyers, slept through that lesson.

Anonymous said...

There is one thing I truely not understand: Why would the RIAA care enough to appeal this ruling? A grudge against the Berkman Center?

raybeckerman said...

I guess they are scared stiff of the world seeing what's going on in these cases.

If I were an RIAA lawyer I would be ashamed too.

derivative said...

The RIAA's argument is interesting. They are asking the appeals court to read the word "or" (in the phrase "Except as specifically provided in these rules or by order of the court...") to not mean what you or I would think it would.

Their argument is that, if the "or" is read in the ordinary way, then subpart (c) of the rule, which says the court "may permit" photographing or recording under some circumstances, becomes meaningless -- if the court could order any recording, then what is the use of specifically delineating the types of recording the court is allowed to "permit" in subpart (c)?

This argument only works if "permit" is synonymous with "order." But in that case, why didn't the rule use the word "order" in both cases?

Obviously, in real life, "permit" is more akin to "allow" than it is to "order." They are two different things completely. For example, "permitting" someone to take a picture to preserve evidence or to take a picture of their loved one gaining citizenship (two of the things that 83.3 (c) allows) can be done retroactively and/or without requirement that the picture actually be taken, while "ordering" someone to take a picture to preserve evidence is hard to do retroactively.

On the surface, it would seem like the RIAA has an uphill argument on this one. Still, it would be great if the defense could find some historical discussion of how the wording of this rule came about, to insure that the sophistry is not rewarded.

Anonymous said...

Or maybe they might be afraid it might be used as evidence in a Bar complaint in their state of license.

Is not the standard of appeal something like "NO reasonable Judge could ever have ruled this way"? Judges are given leaway to rule, and unless it is a VERY big no-no, are not their decisions upheld? Since the Court itself maintains a transcript of everything said, how could this additional recording of the same thing be unfair to the Plaintiffs?

Since the Plaintiff has been claiming the desire to "educate" the public by means of these suits, why not?

The best way to inform the public is to allow the public to view and hear the proceedings from Gavel to Gavel. Guess that bit about informing the public must have been a lie...... Wonder if they have a problem here when we have posted transcripts? If they do shoot down the recording, lets make sure a transcript is posted so they cannot hide whatever it looks like they want to hide at that hearing... Whatever it is, they are sure going to a lot of trouble to hide it.

An "AH-HA" moment just hit me: I bet I can guess what they dont want. It is a loss in this case on Video, in a form that can be easily be aired on all the nightly news shows..... Television news has been largely been ignoring these cases. Maybe they are afraid if there are some video clips, a loss might not be ignored this time.


raybeckerman said...

Yes the rule clearly makes it discretionary with the court in other than the enumerated instances. Prohibition can't be used to prohibit something which is within the Court's discretion.

Anonymous said...

"An "AH-HA" moment just hit me: I bet I can guess what they dont want. It is a loss in this case on Video, in a form that can be easily be aired on all the nightly news shows..... "

It's not the nightly news shows they fear.
The same corporations that own labels
the RIAA represent own the networks too.

Once again, it is the internet they fear,
because once it hits the 'wild' it will
get to the point where the major news
networks can no longer afford to ignore
it without demonstrating that they are
in fact keeping this quiet on the
labels behalf.

Another demonstration of their fear of the future.

They WILL abandon this case rather than let it
go internet wide.


Anonymous said...

Or perhaps the RIAA is worried about estoppel in some future case if their actions are so clearly documented in this one. This man sees them appear to play both sides of the fence as it suits their purposes.

{The Common Man Speaking}

derivative said...

To all those discussing why the RIAA is fighting so hard on this: It does have everything to do with communication, but nothing to do with the nightly news.

Occam's razor says they just want to keep their targets in the dark and paying up at the settlement center. It's especially good for them if one of your friends paid immediately for $3000 and another waited and had to spend $7000.

If the Berkman Center does a good job on this, the result will be a step-by-step guide to eviscerating the bogus arguments of the RIAA, including bonus video footage of how it's done in front of a real judge.

The RIAA absolutely loathes Ray because he gives great practice tips to fellow professionals. (Don't take my word for it -- go read some of their legal filings.)

Imagine how they feel about a group which is working to completely demystify how courts work and how the RIAA's own arguments work or don't work.

Although appearing "pro se" is generally a bad idea, kow-towing to these extortionists is also a bad idea. If I were a young, idealistic student with more time than money and few attachable assets, I would probably be headstrong enough to watch how the Berkman Center does it and think "Hey! I can do this!" Between their resources and Ray's resources and a little bit of reading, I could be legally dangerous.

Now you might think that the RIAA wouldn't mind going against a pro se defendant who doesn't know the ropes -- they've certainly shown a willingness to do so before -- but consider what happens when this information is widely disseminated, and remember how many targets the RIAA pursues (over thirty thousand and counting?).

Suddenly, instead of a lot of settlements and a few legal challenges, the settlements, which fund this charade, will dry up, there will be no more default judgments, and they will have scores, hundreds, or even thousands of cases (their choice!) to try to prosecute.

The "snowball effect" would be magnificent.

Right now, students can look at what Ray and a few other lawyers have accomplished, and think "man, imagine the legal fees when these guys just keep harassing you for YEARS."

But as pro se students start winning, or even start keeping the RIAA from winning, they can tell their friends "yeah, I have some paperwork to keep up with, and I have to go to court occasionally, but it's been 8 months now, and I haven't given those leeches a dime so far."

The students will share their own pro se practice tips and learn a lot about the workings of the justice system.

There will be a huge increase in the number of idealistic, caring students interested in law careers, because of the increased exposure to these RIAA tactics and the courtroom.

In short, the ability of the Berkman Center to air these videos will be a watershed event in the coming emasculation of special-interest corporate lawyers. Combine this with what's going on in the political spectrum right now, and it must be a scary time to be a greedy sociopath.

The corporate lawyers have to fight this tooth and nail, but it will do them no good, because there are already a lot of good lawyers and judges who are watching them now, and the ranks of people going into law for the right reasons will swell in the years ahead. The recording companies and similar greedy rent-seekers have nobody to blame but themselves for this outcome.

Anonymous said...

I support the record labels' litigation campaign. But I disagree with their move to block this webcast, as I explain here:

derivative said...

"I support the record labels' litigation campaign."

I have no problem with record labels working to try to enforce their copyrights.

I have a HUGE problem with the way they have gone about it.

Do you honestly believe that Marie Lindor is a copyright infringer? The RIAA campaign's collateral damage is madness. How can anybody with a heart and a brain "support" the way they have gone about some of this litigation? It has damaged a lot of people's lives, and it appears to be as futile as building sandcastles at low tide.

I have read a bit on your blog, and can believe that you are trying to do the right thing. As Joe Biden is fond of saying "Question a man's judgment, never his motivations." So I'll do just that. Even if I were to stipulate that your statement that "infringers need to be taught a harsh lesson" is correct, that still leaves a few questions. How harsh? Is it OK to "teach" the lesson by lying and acting sleazy, or does that teach other worse lessons? Is it OK to teach the lesson that if you are anywhere near where it is possible that infringement might have allegedly occurred, you are at risk, so you better monitor carefully what your adult children are doing with computers inside your house, even when you are not there? If you think all these are OK, then I think your judgment is seriously impaired, and if your motivations are pure then I hope the lessons that rectify your judgment don't come at too harsh a cost to you.

Anonymous said...

Copyrights + Campaigns: One might say that the record labels need to learn a lesson instead. Their current business model is obsolete, and they need to find a new one, not waste time harrassing people in court. What they're doing now certainly isn't productive. -KY

Anonymous said...

"Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording or ... [of this stuff]."
- Local Rules of the United States District Court for the District of Massachusetts

"On its face -- as the caption to subsection (a) plainly indicates -- this Rule bars the recording and broadcast authorized by the district court in the January 14, 2009, Order." - Plaintiffs

On its face indeed...

Ms Piggy

Anonymous said...

I find it interesting that they're concerned about "contamination" of the jury pool, since they have spent millions in a public relations campaign to say "downloading is stealing." I'd be relatively certain the judge will see right through this kind of argument. If anything, I'd wager the jury pool is biased in the RIAA's direction, rather than the "innocent college student" direction. The Tomas case illustrated what the general makeup of a jury will be.


Unknown said...

Any chance of a narrowcast of the Court of Appeals consideration of the RIAA's Writ of Prohibition - or would that be considered vexatious?

Dave aka Jadeic

raybeckerman said...

Dear "Copyright & Campaigns"

You can also be "pro-copyright owner" without supporting the RIAA's scorched earth campaign against ordinary folks, most of whom either never even heard of filesharing or didn't know it might involve copyright infringement.

I didn't come into this struggle as a member of the "copyleft". I came into it because I detest bullies and bullying. Hopefully this attempt by the RIAA to keep the proceedings from public scrutiny will start to open your eyes as to the nature of the people with whom you have been in league.

I too am "pro-copyright.

But I am even more "pro-decency, pro-fairness, and pro-humanity".

raybeckerman said...

Dear Dave, absolutely -- if there were to be oral arguments -- these well might be streamed.

However don't be surprised for the RIAA's "writ" to be denied without oral argument.

Anonymous said...

I wonder what the odds are that RIAA is just trying to increase the litigation cost and drag the process out so that Nesson's initial law students are no longer on the case.

I'm amazed that every time a case is actually contested, the RIAA goes to extraordinary lengths to drive up the cost of litigation.


raybeckerman said...

No, they can't possibly think that the Harvard law students are going away.

They really, really are petrified of the world seeing how cruel these proceedings actually are.

And they do NOT want future litigants to have access to information about prior cases, because having these materials makes it less expensive and more efficient for future defense cases, since the RIAA's cases are all 'cookie cutter'.

Jadeic said...

Lest the RIAA prevail in their smokescreen attempts I am sure there is scope for an enterprising group of drama / media students to script a video based on actual court transcriptions that would find a ready YouTube audience and perhaps an Oscar nomination - now that would be a hoot!

Jadeic aka Dave

raybeckerman said...

Well I think I now have my first insight into why the Holme Roberts & Owen lawyers so easily get confused.

Anonymous said...

I suspect few reading this blog will agree with me, but I have more here:

raybeckerman said...

Dear Copyright & Campaigns

Beware of a tendency to generalize.

You first say 'few reading this blog will agree with me'. In fact all kinds of people read this blog. including you and including the RIAA lawyers.

Second in your blog you speak of the 'copyleft' and decry their statements that all of the defendants are innocent. This is a less than careful generalization in several respects.

In the first place, not everyone who opposed the RIAA litigations is of the "copyleft". In fact, I do not know of a single defendant's lawyer who would characterize themselves that way or could fairly be characterized that way by anyone who knows them. I opposed the litigations because they are unfair and oppressive, based on nonexistent legal theory and insufficient evidence.

In the second place no one believes or has claimed that all of the defendants are innocent of having infringed sound recording copyrights through the use of p2p filesharing. My estimate is that approximately half of the defendants are innocent of having committed copyright infringement. The other half are being pursued for grossly disproportionate statutory damages awards, and are being pursued in litigation when cease and desist agreements ought to have sufficed.

Anonymous said...

Copyright & Campaigns:

In particular, if you look at the damages awarded against Thomas before the judge revisited the matter, you find ridiculous numbers. I don't know anybody, anywhere, who thinks it's reasonable to be hit for tens or hundreds of thousands of dollars in fines when the music at hand is worth a few dollars.

Even the RIAA knows it's ridiculous, this setup, but the RIAA claims it is trying to set an example. "Setting an example" is a nice way of saying "slap down some people as hard as we can in hopes that it'll scare the rest". And that shows no deceny. And if done improperly, it's illegal to boot.


Al Petrofsky said...

Thanks for posting this petition and other documents from the case. Nesson's brief points to California as an example of liberal camera policies. Frustratingly, there have nevertheless been multiple occassions when I was unable to publish any video, audio, nor even a freakin' written transcript, of motion hearings that were held in open court with no witnesses nor jurors present. The judges have effectively unlimited discretion to deny all recording requests (per Cal. Rules of Court 1.150(e)), and the court reporters menacingly threaten anyone who publishes a transcript on the internet, claiming that this is prohibited by state law (Cal. Gov. Code §69954(d)), despite the well-established non-copyrightability of court transcripts. For details, see my July 31, 2008 blog entry about Eclipse Aviation Corp. v. John Doe, et al., No. 1-08-CV-110380 (Cal. Superior Ct., Santa Clara Cty.).

By the way, contrary to your erroneous headline, "RIAA Files Writ of 'Mandamus or Prohibition'", what the RIAA has filed is clearly not a writ of any kind. It is a petition for a writ. Had you "been paying attention in law school", you would surely know the difference between a writ and a petition. :-)

I also notice that although the document is styled as a petition for a writ of "mandamus or prohibition", the body of the document makes no mention of prohibition and seeks only a writ of mandumus, which would be worded so as to compel the lower court to perform specific acts, rather than to prohibit the lower court from performing any acts. In particular, the petitioners request "a writ of mandamus directing Judge Gertner to vacate that Order and to instead issue an order barring the recording and broadcasting of the district court proceedings in the underlying case", or, alternatively, "a writ of mandamus directing Judge Gertner to vacate the Order of January 14, 2009 and to refer the Defendant's Motion seeking to record and broadcast the proceedings in the underlying case to a full panel of judges for the United States District Court for the District of Massachusetts." (petition at p. 2)

On the immateriality of the difference between mandamus and prohibition (and thus, perhaps, the imprudence of throwing around insults based on alleged failures to properly distinguish the two), here's something written by Harvard Law School Professor (and former U.S. Solicitor General) Charles Fried (who may or may not have slept through 1L at Columbia): "There is little practical difference between the two writs of mandamus and prohibition. See 16 C. Wright & A. Miller, Federal Practice and Procedure Section 3932, at 206-207 (1977). Like mandamus, its more familiar counterpart, the writ of prohibition 'is directed against unwarranted assumptions of jurisdiction or excesses of it.' Ex parte United States, 263 U.S. 389, 393 (1923). In this case, the label to be affixed to the writ depends upon whether the appropriate relief is viewed as prohibiting the district court from proceeding to hear this case or, alternatively, ordering the district court to dismiss the case. In either event, issuance of the writ requires consideration of the same factors, and the precise label attached to the writ does not matter. See Ex parte Simons, 247 U.S. 231, 239-240 (1918). For convenience, we will use the term 'mandamus' to refer to mandamus or prohibition." (Petition for a Writ of Mandamus or Prohibition, July 1986, in In re: Baker, No. 86-162, U.S. Supreme Court).