Monday, February 02, 2009

RIAA files reply brief in support of its petition for 'mandamus or prohibition', argues Judge Gertner, Tenenbaum, amici misinterpreted rule

In SONY BMG Music v. Tenenbaum, the RIAA has filed a reply brief in support of its petition for 'mandamus or certiorari', arguing that:

-Mr. Tenenbaum had no right to "incorporate by reference" the legal arguments made by the amici curiae,

-Judge Gertner, Tenenbaum, and the amici curiae have all misunderstood the provision of Rule 83.3 which states "or by order of the court"

-the "mandamus" application did not require a showing of irreparable harm, and

-if mandamus is not the proper remedy, their "protective notice of appeal" should be considered.

The reply brief does not address any of the constitutional issues that had been raised by Judge Gertner and by the amici.

RIAA Reply Brief

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


Eric said...

"Indeed, several of the Plaintiffs' claims involve questions of
"how" the recording will be made and distributed and not "whether" the
hearing can be recorded under Local Rule 83.3" - Order from Jan 20th

It's no wonder the defendants didn't address the issue of whether, the judge already ruled on that point.

If 83.3 plainly forbid recording when why does the court room have pre-installed equipment and contracts with Courtroom View Network? I'll bet this has already been litigates 9 ways to Sunday and the precident is clear.

If anyone should be sanctioned, it should be the RIAA for this obvious stalling and abuse of the courts time.

Anonymous said...

Ray, you left out the best part, contained in the lead paragraph:
"The Various amici—none of whom are parties to the underlying litigation..."

I am shocked, I tell you. Shocked. You mean there are amici curiae who are not parties to the litigation? Good Lord! What will they think of next?

It gets better. To exclude the attempt to "incorporate by reference" (their words, not mine), "the arguments of various non-parties," they cite "We know of no authority which allows an amicus to interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore". Good gracious, could these snooty Ivy Leaguers actually be hoping their argument relies on reading "Litigants" to mean "both parties" and not "any cartel of lawyers with pretensions of representing a client?" Oh, and they back that up with criticism of an "appellant who 'adopted verbatim' arguments of another appellant." I'm sure that applies, since that verbatim adoption would have been in documents of the same case.

Look, I'm going to stop here on page two: if I continue, I'll be so scandalized at the behavior of Nesson and company, that I may be moved to donate my heart and brain to HRO, because they're obviously in need.

raybeckerman said...

You were expecting Clarence Darrow?

Alter_Fritz said...

1) unbelievable! the omniscient garbage dump named interweb even could answered me my "who the [sexual intercourse expression here] is Clarence Darrow" question.

And Google was even smart enough to give me as first link for that serach term the one I actually needed (scary that is what google assumes automagicly already about me!)

2) Dinger, you can keep your Heart and Brain. They only might ask you for your blood since they would not know what a heart is good for due to lack of the same in them and Brain ... well, forget it!

raybeckerman said...

Clarence Darrow was probably the greatest American trial lawyer of the early part of the 20th Century.

Anonymous said...

Eric (from above) hit the nail on the head he stated:

"why does the court room have pre-installed equipment and contracts with Courtroom View Network"

It even appears like they don't remember what their original objection was . . . not if the recording can take place but by whom. Now they go and basically tell this judge that she is wrong?

I hope that these RIAA fools get laughed out of the courtroom for this. If I was this judge, then I would be really tempted to excercise my ability to make their life a living hell.

Maybe these RIAA lawyers should start applying for garbage hauling jobs, because pissing off a judge like this isn't the brightest thing.

Anonymous said...

Plaintiffs: "The Plain Language of Local Rule 83.3 Bars Recording and Broadcasting of the District Court Proceeding".

But it seems like plain language grants the judge that authority. Plaintiffs first claim it doesn't, but instead of citing the passage where it's plainly stated, they reason about sections limiting the power of other subsections. Odd, that.


raybeckerman said...


Don't you get it?

Black is white.

Jadeic said...

Of course Black Is White - to claim otherwise the 'Black Is Black' [Los Lobos - reached #2 in the UK Singles Chart in July 1966 and #4 in the U.S. Billboard Hot 100 chart] is to lay oneself open to claims of copyright infringement.


derivative said...


Assuming, arguendo, that there is any merit whatsoever to the RIAA's historical analysis of the local rule, that's still something they should have put in the original, not in a reply brief, right?

raybeckerman said...

Yes but their papers are woeful in a number of ways. As I've been trying to tell people for years... they are not good lawyers.

They are just bullies.

Anonymous said...

Get off of your high horse Ray. If you were such a fantastic attorney, then you'd actually be working instead of writing ad hominem attacks toward other attorneys merely because you don't share the view of their clients.

The attorneys in this case are not bad whatsoever, as evidenced by their moving papers. This new appellate motion is beyond reproach. It's arguments are iron-clad, and backed up by very neutral research, including statements damning the Judge's own position on the matter. The respondents don't have a shot in hell, which is why their response was simply to say "nu-uh!"

raybeckerman said...

I never said I was a "fantastic attorney". If I was a "fantastic attorney" I would have shut these fakes down years ago. I deeply regret that I have not been able to do a good enough job making short work of them. It is happening, and they have clearly thrown in the towel, as all bullies do when they meet resistance. But it has taken much too long.

Anonymous said...

To call this, or any other RIAA filing, "brief" is high comedy. A cogent argument is most often concise as well.

And Ray, this man affirms that even a fantastic attorney still needs fantastic judges who can comprehend the flawed approach the RIAA is using. This man does not know the current population of judges in this country, however, it may be a long time before the RIAA exhausts the supply of those either not understanding the issue at all, or who seem to buy the industry viewpoint at face value because (perhaps) of the belief that big important corporations losing "billions of dollars" to copyright infringement simply cannot be wrong and someone must be punished here somehow.

{The Common Man Speaking}

Anonymous said...

Sorry to get a bit off topic here but...

Jadeic - that was Los Bravos who did "Black Is Black", not Los Lobos.

Which reminds me of another lyric that pertains to the RIAA reply brief - "Just cause I say it that don't mean it's so."

From the song "Walk In the Sunshine", Bob Wier, "Ace".

Anonymous said...

Point of information: Ad hominem refers to a fallacious argument that gets its force not from reason, but from irrelevant criticism of the person.

If, for example, the discussion is on the activities of a litigant, the competence of the parties as lawyers is pertinent to the discussion.
So, when trying to explain why a party would behave in such a way, "bad lawyers" is a perfectly legitimate response. So, when one wonders why anyone would author a paragraph touting that the "plain language" meaning of a rule can only be achieved through subtle distinctions, detailed exegesis and exhaustive use of Venn diagrams, one must consider incompetence. On their reading, "plain language" is anything but.

On the other hand, asserting that a judge previously held the opposite opinion could very well be considered an argument ad hominem. The judge gave the grounds for the issue under appeal. Bringing up the judge's prior testimony before a legislative body on a related matter does not advance the argument. There are many possible reasons for the apparent divergence: A. When understood in context, the two positions are coherent, B. On further reflection, the judge's understanding changed, and so on. The only possible reason that would help the plaintiffs is: Z. The Judge is being partial.

That's the argument they've been working towards from their initial appeal, with their implications concerning Judge Gertner's assistance in finding representation for a pro se litigant. It's not the issue under appeal, which makes it ad hominem. It's also not the kind of accusation I would ever want my attorney to imply in appeal. Either come out and say it and take your lumps, or keep to the relevant arguments. For the court to accept any of those implications, they'd be conceding to the accusations of partiality. That would mean not only undermining the authority and besmirching the honor of a colleague, but also opening up the floodgates for a ton of appeals. In addition, I'd think it would have the net effect of making any judge involved in the process particularly critical when reviewing subsequent motions.

Then again, this whole campaign has been about winning enemies. So yeah, "Bad Lawyers" seems to me a perfectly reasonable conclusion.

Anonymous said...


Anonymous said...


"Ad hominem refers to a fallacious argument that gets its force not from reason, but from irrelevant criticism of the person."

That is the best written summary of "ad hominem" I've seen. Nicely phrased.

A list of logical fallacies, unfortunately, works like a bingo card when reading RIAA filings...

There is an internet meme containing a comprehensive list of logical fallacies, satirically reworked to be a how to guide for making fallacious arguments. It seems like the RIAA has been using it as a playbook. For instance:

"9 Use your opponent’s answers to your question to reach different or even opposite conclusions."

Of course the RIAA even does this with its own expert witnesses, when they aren't busy having them rewrite their reports to match the conclusions the RIAA wants (IMO).

And here is an RIAA favorite:
"18 If your opponent has taken up a line of argument that will end in your defeat, you must not allow him to carry it to its conclusion."

That one they have taken to hart and improved upon, with their strategy of trying to keep the public in the dark so nobody knows how many "do overs" they've tried to pull attempting to advance specious legal arguments and pulling out just before a court would have ruled negatively; that way they can forum shop to their heart's content, until they finally, finally manage to role snake eyes--bound to happen if they can just roll the dice often enough with no negative consequences.

(Note, Arthur Schopenhauer is listed as the author of the list, but actually is the source who's work was modified by the satirist. He has a real work on argumentation. )

Anonymous said...

That reply brief got me all confused :( Could someone please tell me in pain language does Chewbacca live on Endor or Kashyyyk???

Alter_Fritz said...

The plain language says the judge is not allowed to allow him to film his kids on Kashyyyk?

For the honourable Judges that might not understand Anon's February 3, 2009 9:29:00 PM EST Question:


raybeckerman said...

I have read and reread Rule 83.3.

There is absolutely nothing ambiguous about it.

It is a prohibition against ordinary folks like you and me deciding to start taking pictures or videos or tape recordings without a court order permitting us to do so.

The RIAA's argument is completely frivolous.

Alter_Fritz said...

"The RIAA has filed an appeal in the 9th circuit Court of Appeals contending, among other things, that the Judge did not have the authority to decide what..."

sounds familiar so far?

Well, read the rest and walkdown memory lane

Imagine if they had won that one back then!
Happy anniversary and applause for RIAA's shortsightness!

"The RIAA, however, stated in press materials that "it seems doubtful that there would be a market for MP3 recording devices[..."]"

raybeckerman said...

If that isn't off topic, I don't know what is.

By the way, A_F.... as long as we're off topic... thank you very, very much for teaching me border=0. That was one of those landmark things in my education, along with (a) learning how to make my first link, and (b) learning how to make by first name tag.

raybeckerman said...

Next question: how do I make a black border for content?

Alter_Fritz said...

well, first the "surrounding links that are images" border attribute is deprecated according to html standard
so you might want to use css stylesheets instead, but that's not my world, sorry

I leared my basic html back then from an early edition of selfhtml, for colored links you use the "body" tag and define there the colors for links, visited links and activated links

example at

"black border for content" not sure what you mean,
if you want text with a border around it, I guess you need to put it in frames, define the thickness of the frame with the border="n" atribute and the color with the bordercolor atribute

Hm, after a second thought you want something like that(*)?


that works with css though

Alter_Fritz said...

more fancy borders :-P