Thursday, March 12, 2009

RIAA files notice basically telling Judge Gertner to 'stick it', in SONY BMG Music v. Tenenbaum

After letting the March 11th deadline for submission of its reconsideration motion, in SONY BMG Music Entertainment v. Tenenbaum, expire, the RIAA has filed a document it calls a "notice" stating that

In response to the District Court’s March 4, 2009, Order, Plaintiffs note that the District Court’s January 14, 2009, Order has been stayed by the First Circuit Court of Appeals and that any issues surrounding that Order are currently pending in the First Circuit. The First Circuit can resolve the broadcasting issue expeditiously without additional briefing or further appeals.
Notice by RIAA

[Ed. note. This vividly demonstrates that the RIAA has the kind of legal representation it deserves.

I have never seen anything like this.

The presiding judge suggested that they file a reconsideration motion, the primary purposes of which were (a) to enable the RIAA lawyers to brief something they had neglected to brief in their initial papers, and (b) to enable the Court to resolve the issue, after having been properly briefed, prior to its having to be resolved by the appeals court..... and the RIAA has simply thumbed its nose at the judge.

What makes this even more astonishing is that the reason the judge has been placed in this awkward position is the RIAA lawyers' incompetence in failing to have brought the 1996 Judicial Council resolution to her attention in the first place.

If there were any doubters among you as to the overwhelming incompetence of the RIAA's lawyers, this should remove whatever doubt is left.

And you nonlawyers out there, don't ask me what this indicates or why the RIAA lawyers did it; or where in the Federal Rules of Civil Procedure it provides for such a "notice". Because I am sure the seasoned litigators out there are as shocked and perplexed as you are.

All I can say is: I guess they feel that the tactic of humiliating the judge who presides over all of their Massachusetts cases, and who has granted them hundreds of judgments and dozens of ex parte orders on meager evidence and insufficient pleadings, against defenseless people, in connection with a situation brought about by their own negligence, is as prudent a course of action as suing one's customers. -R.B.]

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Nohwhere Man said...

From an old Groklaw article-
Spitting in the judge's face is not generally considered a persuasive technique
in oral argument.

(Originally posted by allparadox)

Anonymous said...

Kinda makes you wonder how they could have passed the bar with their purchased back alley diplomas.

Anyway, It would be nice if the First Circuit Court of Appeals comes down on the side of Judge Gertner and she opens all the court proceedings in this and any other RIAA case in her court to be broadcast.

Then when they try to get them dismissed, she says "nope, not going to happen, live with it." :)

TomasG said...

Dont really understand exactly whats going on with all the legalese, but am just happy that it sounds bad for the RIAA.

Hopefully it will come back to bite their head off.

For those of you reading this who are not lawyers like me, i did find another informative post by Ray explaining this a bit further , it should help:

(Comment)So, if my non-attorney self is reading this correctly, the judge says, "you missed something, you should file for an extension." and the RIAA says, "naw dog, we got this yo, it's not even your jurisdiction." is that right?

(Ray responds)
Sort of, but it's more like: the judge says: "you missed something, so I'm giving you a chance to correct it now" and the RIAA says "screw you, we'd rather let the Appeals Court decide than give you a chance to correct our error".

Champaign at my place when the judge gets her own back and tells the RIAA to screw themselves ;)


Anonymous said...

Possibly they think the appellate court will be more favorable to them than Gertner will? What are the chances it'll simply get remanded back to the district court, if it comes to the attention of the appellate court that the RIAA ignored an opportunity provided by the judge to have the issue reconsidered in the district court?

raybeckerman said...

There's a basic underlying principle in American law, applicable to appeals to the courts from administrative action, and applicable to appeals to higher courts from lower courts: you are supposed to exhaust your remedies in the tribunal below before taking your grievance to an appellate tribunal.

The RIAA lawyers, by failing to bring the Judicial Council resolution to Judge Gertner's attention in the first place, failing to argue its legal effect, and then deliberately refusing to do so after afforded a "second bite at the apple" by the judge, have screwed up royally.

Additionally, if you go back to the petition itself -- where their central arguments were arguments they'd never made in the court below -- I would not be surprised to see their petition bounced just on the grounds that almost all of their arguments were raised for the first time in the appeals court. And in fact one of their arguments -- the Judicial Council resolution -- wasn't raised by them at all.

Now in fairness to the RIAA lawyers and to Prof. Nesson, it appears that the reason the Judicial Council resolution was overlooked by everybody is that it wasn't properly enacted in the first place, in that proper notice wasn't given.