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The Ninth Circuit (which this case is not in, but Ninth Circuit rules on a lot of technology cases) wrote a lot about contributory infringement and vicarious infringement recently. Here is a summary:

EFF P2P Executive Summary

And the actual words of the court:

A&M Records v Napster

Here's my analysis. Unlike the authors in the links above, IANAL, so this may have errors in it.

Direct infringement: is when I take your copyrighted material and make more copies without permission (either statutory permission, like making a backup, or express permission, like following the terms of your license).

Contributory infringement: is when someone sends me a bunch of copyrighted material illegally, and then I knowingly make lots of copies and give them to other people.

Vicarious infringement: is when I run a system where a lot of direct infringement happens.

The line between contributory and vicarious infringement is blurry to me.

In this case, direct infringement would be if Linus sat down and personally copied foo/bar/super-sco-source.c into the kernel. Nobody is alleging that he did that.

Contributory infringement would be if SGI copied foo/bar/super-sco-source.c, sent it to Linus, and Linus knew that it was SCO's source code, and Linus published it anyways. One element of contributory infringement is knowledge. The Ninth Circuit said that before a plaintiff can sue for contributory infringement, they have to provide specific notice to the defendant of the infringing material. SCO has not done that -- in fact, SCO has publicly and willfully refused to do that. McBride said at a press conference "if we identified the infringing material, Red Hat would just take it out". In my amateur opinion, those facts defeat any SCO claims of contributory infringement.

My take on "contributory infringement" is similar to the populist view here. I believe that nobody is liable for contributory infringement until the offended party identifies specific files. No files and no line numbers mean that there is no contributory infringement.

Vicarious infringement is more troublesome. To be liable for vicarious infringement, one just has to operate a service where direct infringement takes place, with any degree of control over the users. There's no requirement that the vicarious infringer have actual knowledge that infringing material is available through the service.

SCO claims, in its amended lawsuit against IBM, that Linus Torvalds "cannot or will not" identify the IP owners of the code that is sent to him. SCO is lining up their ducks for a vicarious infringement claim against Torvalds!

Note that the FSF is safe here. Before the FSF accepts copyrighted code from other people, they require a signed contract where the contributor states that they own the copyright on the code that they are contributing, and that they will indemnify the FSF if they actually contribute someone else's code. That is a strong pro-active policy to prevent direct infringement, so I think the FSF is safe against claims of vicarious infringement.

I don't know how far a court will go with vicarious infringement. I think, though, that any open source author who accepts contributions from other people needs to have SOME process in place to filter out illegal contributions and disconnect anybody who submits them.

Legal cases are generally public record, are they not?

Yes, they are. US federal courts offer electronic access through the PACER system, Public Access to Court Electronic Records.

PACER

First you have to register, which is free. Then PACER sends you an account login and password via snail mail.

The registration instructions say that if you are outside of the USA then you need to use the Fax registration form.

After you get a login and password (takes about a week), then you can login. Login and go to the appropriate court. You want District Court of Utah.

Search for party -- SCO. Then start clicking and reading!

Pacer costs $0.07 per page, but if you use less than $10.00 per calendar year, then the charges are waived.

Also the documents themselves often come in TIFF format which is a pain in the ass.

It would be worthwhile for someone to hit Pacer, download all the documents, convert them to gif or jpeg or pdf, and then offer them on a website.

In this particular case, SCO provides their own copies of the documents. They may not offer ALL the documents (especially damaging documents that IBM files) and you can't quite trust that the documents they display are actually the documents that they filed with the court (although if someone catches them cheating on this it would be a great news story). But you can start getting some instant gratification by reading here:

SCO Documents on IBM Lawsuit

9. The court found the report made to the police was made with reckless disregard for the probability that the aftermath of making the report would cause emotional distress.

10. The court found the emotional distress sustained by the Plaintiff appeared to have been a "desired by-product" of Defendant George Bauswell's conduct.

11. The court awarded the Plaintiff $177.00 for uninsured medical expenses incurred as a result of the Defendant's conduct. The court also assessed $500.00 in exemplary damages against Mr. Bauswell [one of the Defendants] for subjecting his exspouse to a criminal investigation "knowing that there [was] no basis in fact for such action."
Note: Added Bold emphasis mine.

As I am neither a lawyer nor a law student, I don't have the energy to wade through the rest of the court summary. But at the end, it does state that the judgement in favor of the Plaintiff was made persuant to 11 U.S.C. section 523(a)6. This indicates that the judgement was made not under Iowa law, but under U.S. Federal law. As such, perhaps a similar argument could be made against ESA, although the Federal definition of "emtional distress" may be different from those of Iowa.

As a larger comment on the Slashdot community as a whole: as I said, I am not a law student (actually a computer science student), but I took about 2 minutes of my time to look up a piece of relavent caselaw, and then another 20 minutes of my time to wade through it (this is why I'm not a law student..) I did not simply type some one-off, unfounded comment which, while intended in humor, is an indication a type of general apathy apparently seemingly prevalent among a portion of the Slashdot readership (or commentator-ship, at least).

In an earlier post in this "discussion" (although it isn't really a discussion, because it does nothing to encourage the persuasion of personal opinions or the formation of plans of action), "Rifter" states that "Since the Attorneys General [..] refuse to prosecute any of these entities for their numerous perjories [..] [the entities] see no need for due diligence [..] [resulting] in scenarios like this"

This comment was rated a 5, but since "Rifter" does not show his email publicly, there is no way that like-minds can talk to him about what he said. Given his comment (which is true), an obvious course of action is for each of the apparently hundreds of people who have taken the time to comment on this article (including myself) to organize and write letters - even form letters - to various Attorneys General urging them to vigourously investigate and prosecute allegations of purjury in cases such as this. Yet I saw no suggestions of such nature made (perhaps I missed it though..)

I find it very hard to believe that this C&D letter is an isolated incident - after all, who would particularly have an axe to grind with Gentoo? Furthermore, there have bee

why would the subpoena not come from a federal court instead of a locality?

Because, as it has been pointed out several times, there are scores of federal courts, one in each locality.

Not quite. These are federal actions, not state actions. State laws are enforced in state courts, usually organized by county. Federal laws (like copyright) are enforced by federal courts, organized into 94 federal judicial districts. Each state has at least one district.

jeremycec writes " Evidently, nothing's been resolved since 2001 , when this happened the first time. In these Memorandum Opinion and Preliminary Injunction documents from Judge Royce C. Lamberth of the U.S. District Court for Washington, D.C., we see how the court stepped in to pull the plug on a system, which, through its abject lack of due care, left someone's important financial information wide open to attackers. According to the former CIO of the Bureau of Indian Affairs: 'For all practical purposes, we have no security, we have no infrastructure, ... Our entire network has no, firewalls on it. I don't like running a network that can be breached by a high school kid.' So, when the BIA could get no relief through Interior's IT Dept., it went to the courts. Source: Government Computer News "

jeremycec writes " Evidently, nothing's been resolved since 2001 , when this happened the first time. In these Memorandum Opinion and Preliminary Injunction documents from Judge Royce C. Lamberth of the U.S. District Court for Washington, D.C., we see how the court stepped in to pull the plug on a system, which, through its abject lack of due care, left someone's important financial information wide open to attackers. According to the former CIO of the Bureau of Indian Affairs: 'For all practical purposes, we have no security, we have no infrastructure, ... Our entire network has no, firewalls on it. I don't like running a network that can be breached by a high school kid.' So, when the BIA could get no relief through Interior's IT Dept., it went to the courts. Source: Government Computer News "

jeremycec writes " Evidently, nothing's been resolved since 2001 , when this happened the first time. In these Memorandum Opinion and Preliminary Injunction documents from Judge Royce C. Lamberth of the U.S. District Court for Washington, D.C., we see how the court stepped in to pull the plug on a system, which, through its abject lack of due care, left someone's important financial information wide open to attackers. According to the former CIO of the Bureau of Indian Affairs: 'For all practical purposes, we have no security, we have no infrastructure, ... Our entire network has no, firewalls on it. I don't like running a network that can be breached by a high school kid.' So, when the BIA could get no relief through Interior's IT Dept., it went to the courts. Source: Government Computer News "

jeremycec writes " Evidently, nothing's been resolved since 2001 , when this happened the first time. In these Memorandum Opinion and Preliminary Injunction documents from Judge Royce C. Lamberth of the U.S. District Court for Washington, D.C., we see how the court stepped in to pull the plug on a system, which, through its abject lack of due care, left someone's important financial information wide open to attackers. According to the former CIO of the Bureau of Indian Affairs: 'For all practical purposes, we have no security, we have no infrastructure, ... Our entire network has no, firewalls on it. I don't like running a network that can be breached by a high school kid.' So, when the BIA could get no relief through Interior's IT Dept., it went to the courts. Source: Government Computer News "

jeremycec writes " Evidently, nothing's been resolved since 2001 , when this happened the first time. In these Memorandum Opinion and Preliminary Injunction documents from Judge Royce C. Lamberth of the U.S. District Court for Washington, D.C., we see how the court stepped in to pull the plug on a system, which, through its abject lack of due care, left someone's important financial information wide open to attackers. According to the former CIO of the Bureau of Indian Affairs: 'For all practical purposes, we have no security, we have no infrastructure, ... Our entire network has no, firewalls on it. I don't like running a network that can be breached by a high school kid.' So, when the BIA could get no relief through Interior's IT Dept., it went to the courts. Source: Government Computer News "

Part 1: There are (roughly) 260 days per year. Working days, when the courts are open. Greater precision is impossible, as the number of weekdays per year and the number of court holidays per year vary slightly.

Part 2: The number of file sharers is given in the article with only one significant figure. While we might perhaps assume that the number of file sharers is precise to the millions or hundred thousands, that's as good as it gets. Using more than 3 significant figures in this calculation is pointless.

Part 3: The RIAA's suit-filing process will not scale linearly because the number of available courts and the number of available lawyers are rate-limiting. There were fewer than 10000 intellectual property suits filed in federal court in all of 2002. The system probably can't handle even a couple of thousand extra copyright cases.

Conclusion: while amusing, the article's method of analysis is faulty and useless.

Try this analysis.

Givens: There are less than 300000 civil cases filed in federal court each year. (Cases filed in 12 month period ending March 31, 2002: 265091.) Of these, less than 10000 are intellectual property cases. (IP Cases filed in 12 month period ending March 31, 2002: 8366.) There are 60000000 file sharers. (According to the article.) There are ~260 working days in a year. (Excluding weekends and holidays.)

For humor's sake, if the RIAA wanted to sue every file sharer (unnecessary) and if the courts would let them use all the resources currently devoted to all IP lawsuits (which patent and trademark holders would never allow), then 60000000 users / 10000 suits/year = 6000 years to sue them all. Even the courts gave over the entire civil court system to file sharing cases (absurd), it would still take 60000000 users / 300000 suits/year = 200 years.

Let's look at a more interesting question. Suppose that casual file-sharers stop sharing when the odds of getting sued exceed 1/10000. (Pick your own number, if you disagree with this one.) That's 60000000 users * 1/ 10000 odds, which means that only 6000 suits must be filed to scare off the casual user. Getting that many suits filed in a year or two seems to be well within RIAA's capabilities. There might even be enough courts to handle an extra 3000 or so copyright cases a year.

Try this analysis.

Givens: There are less than 300000 civil cases filed in federal court each year. (Cases filed in 12 month period ending March 31, 2002: 265091.) Of these, less than 10000 are intellectual property cases. (IP Cases filed in 12 month period ending March 31, 2002: 8366.) There are 60000000 file sharers. (According to the article.) There are ~260 working days in a year. (Excluding weekends and holidays.)

For humor's sake, if the RIAA wanted to sue every file sharer (unnecessary) and if the courts would let them use all the resources currently devoted to all IP lawsuits (which patent and trademark holders would never allow), then 60000000 users / 10000 suits/year = 6000 years to sue them all. Even the courts gave over the entire civil court system to file sharing cases (absurd), it would still take 60000000 users / 300000 suits/year = 200 years.

Let's look at a more interesting question. Suppose that casual file-sharers stop sharing when the odds of getting sued exceed 1/10000. (Pick your own number, if you disagree with this one.) That's 60000000 users * 1/ 10000 odds, which means that only 6000 suits must be filed to scare off the casual user. Getting that many suits filed in a year or two seems to be well within RIAA's capabilities. There might even be enough courts to handle an extra 3000 or so copyright cases a year.

FYI - The attorneys filing all of these subpoenas on behalf of the RIAA are Yvette Molinaro and Jim Trilling according to United States District Court for the District of Columbia documents available on PACER.

This 2002 ruling criticized the FCC for the "arbitrary and capricious" 35% national ownership cap and told the FCC to reconsider it. Though he probably enjoyed doing it, Powell thus had very little choice in the matter of changing the cap, despite what everyone likes to believe. In fact, he has referred to this fact over and over again.

It may be possible to justify the 35% cap somehow. The judge did not destroy the cap, he basically just vacated it. On the other hand, he did wipe out the cable-broadcast cross-ownership rule completely because he didn't think that it could be justified. The same logic is easily applied to the other major part of the June 2003 rule changes: newspaper-broadcast cross-ownership. There is no point in arguing that point of the rules, as the Judicial Branch would throw it out the window immediately.

So, if you are all looking for someone to verbally crucify, look towards the judicial bench that prompted this rather than the FCC.

Everyone should check out PACER. It is free to register and if fairly cheap to access, and only costs $.07 a page and you will only get billed if you access over $10 worth of information. You can get access to TONS of information about US Court cases.

I never knew there was such easy accesible tools to information that the government owes us anyways. Takes about a week for them to e-mail you a password, and you are free to register as a individual citizen!

My message is only tangentially on-topic, and certainly ranting.

That being said, the parent poster asks totally key questions. I thought, gee, I do random legal research all the time, surely I can find out just what the ruling covered. But no, I'd have to register on the Northern District of California's stupid PACER system, wait for snail mail to give me my login, and then pay $ .07 per web page viewed. Silly me, I thought my taxes should pay for public access to public documents.

Sure, I'm used to having to pay some third party fees for the data they collect or obtain, but I guess I'm surprised to have to pay the federal courts for information they've already put online behind a login/password.

My message is only tangentially on-topic, and certainly ranting.

That being said, the parent poster asks totally key questions. I thought, gee, I do random legal research all the time, surely I can find out just what the ruling covered. But no, I'd have to register on the Northern District of California's stupid PACER system, wait for snail mail to give me my login, and then pay $ .07 per web page viewed. Silly me, I thought my taxes should pay for public access to public documents.

Sure, I'm used to having to pay some third party fees for the data they collect or obtain, but I guess I'm surprised to have to pay the federal courts for information they've already put online behind a login/password.

FYI - The attorneys filing all of these subpoenas on behalf of the RIAA are Yvette Molinaro and Jim Trilling according to United States District Court for the District of Columbia documents available on PACER.

We also reject Aimster's argument that because the Court said in Sony that mere "constructive knowledge" of infringing uses is not enough for contributory infringement, 464 U.S. at 439, and the encryption feature of Aimster's service prevented Deep from knowing what songs were being copied by the users of his system, he lacked the knowledge of infringing uses that liability for contributory infringement requires. Willful blindness is knowledge, in copyright law (where indeed it may be enough that the defendant should have known of the direct infringement, Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987); 2 Goldstein, supra, ? 6.1, p. 6:6), as it is in the law generally. See, e.g., Louis Vuitton S.A. v. Lee, 875 F.2d 584, 590 (7th Cir. 1989) (contributory trademark infringement). One who, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings is held to have a criminal intent, United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990), because a deliberate effort to avoid guilty knowledge is all that the law requires to establish a guilty state of mind. United States v. Josefik, 753 F.2d 585, 589 (7th Cir. 1985); AMPAT/Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1042 (7th Cir. 1990) ("to know, and to want not to know because one suspects, may be, if not the same state of mind, the same degree of fault)." In United States v. Diaz, 864 F.2d 544, 550 (7th Cir. 1988), the defendant, a drug trafficker, sought "to insulate himself from the actual drug transaction so that he could deny knowledge of it," which he did sometimes by absenting himself from the scene of the actual delivery and sometimes by pretending to be fussing under the hood of his car. He did not escape liability by this maneuver; no more can Deep by using encryption software to prevent himself from learning what surely he strongly suspects to be the case: that the users of his service--maybe all the users of his service--are copyright infringers. This is not to say that the provider of an encrypted instant-messaging service or encryption software is ipso factor a contributory infringer should his buyers use the service to infringe copyright, merely because encryption, like secrecy generally, facilitates unlawful transactions. ("Encryption" comes from the Greek word for concealment.) Encryption fosters privacy, and privacy is a social benefit though also a source of social costs. "AOL has begun testing an encrypted version of AIM [AOL Instant Messaging]. Encryption is considered critical for widespread adoption of IM in some industries and federal agencies." Vise, supra. Our point is only that a service provider that would otherwise be a contributory infringer does not obtain immunity by using encryption to shield itself from actual knowledge of the unlawful purposes for which the service is being used.

Judge Richard Posner, a highly regarded Seventh Circuit Judge recently wrote an opinion upholding the Aimster injunction that tends to suggest that identity protection for file sharing is more likely to support a claim for contributory infringement of the vendor than not. The opinion, while troublesome in many respects, is probably the most intelligently written articulation of the 9th Circuit Napster reasoning we are likely to see, and will likely be deemed a persuasive authority by most District Court Judges. That is, until and unless the Supreme Court speaks clearly on whether they meant what they said when they wrote in the Sony Betamax case, that regardless of evidence of wrongdoing there can be no contributory liability for distribution of technology that is capable of a substantial noninfringing use.

My problem with the Napster, and now Aimster, opinions is simply this: the 9th Circuit adopted a broader view of the liability of a technology manufacturer in the Sony Betamax case, essentially a "substantial infringing uses occur means infringement by vendor" test, which was discredited and reversed in Sony, which adopted the "substantial noninfringing use possible means no infringement by vendor," almost the very opposite result. It is hard for me to understand why, when the 9th Circuit essentially brought back the same analysis in its Napster opinion that got "sent home" in Sony, that Judge Posner would so freely adopt it here. To be fair, he explains his reasoning very, very well -- I just don't find it persuasive in view of the law and its underlying policies -- contribution isn't about expanding copyright to permit technology regulation.

To me, the question isn't whether the technology is being used poorly -- even by most users -- if it is capable of a substantial noninfringing use -- in which case there should be NO liability for contribution. (To get a sense how far the Supreme Court went, there was survey evidence before the District Court showing that 50% of the Betamax users were doing some infringement.) The question should be whether the technology vendor was affirmatively and actively inducing others to engage in infringement, as was the case in Napster and, arguably, Aimster.

Time will tell. But until the Supreme Court gets to this, it looks like the Posner account of Napster will be the final word on this question of law. Note, however, that his remarks on identity protection as indicia of wrongdoing are very troubling -- one of these days, perhaps in a few more years, perhaps, if we don't have any more tall buildings hit by planes, we really need to affirmatively try to get the courts and the Congress focused on privacy again.

This document will tell you exactly what procedure is for wiretap.

It also lists that: "In 2002, no federal wiretap reports indicated that encryption was encountered. State and local jurisdictions reported that encryption was encountered in 16 wiretaps terminated in 2002; however, in none of these cases was encryption reported to have prevented law enforcement officials from obtaining the plain text of communications intercepted. In addition, state and local jurisdictions reported that encryption was encountered in 18 wiretaps that were terminated in calendar year 2001 or earlier, but were reported for the first time in 2002; in none of these cases did encryption prevent access to the plain text of communications intercepted.

Yeah, now doesn't it just bug you that the one guy who will make the final decision is just that-- one guy? Look at this guy. Not so much as a shred of technology-related knowledge from the look of him.

Yeah, fat guy, but that just might have something to do with the shear size of the 9th region.

But isn't it interesting how Thomas Penfield Jackson was appointed by a Republican president, while Colleen Kollar-Kotelly was appointed by a Democrat.

Stop your whining and pathetic insults, and get your facts straight.

But isn't it interesting how Thomas Penfield Jackson was appointed by a Republican president, while Colleen Kollar-Kotelly was appointed by a Democrat.

Stop your whining and pathetic insults, and get your facts straight.

I'm surprised to see this story on /. without a link to Daubert on the Web. This is a very important case with a lot of angry followers, and there's some great stuff on this site. I happen to have some of it bookmarked, as IAAL (I Am A Lawyer).

There's also a listing of other cases where this ruling has been applied. One of the most interesting is United States v. Villarman-Oviedo, which is a narcotics case where the admissibility of the evidence was confirmed despite the fact that the expert was obviously drunk when he took the stand.

Also, the arson case of United States v. Diaz where the handwriting expert's opion was admissible, despite the fact that the handwriting expert was actually a phrenologist.

Clearly, this ruling has hand a profound negative impact on our judicial system.

I'm surprised to see this story on /. without a link to Daubert on the Web. This is a very important case with a lot of angry followers, and there's some great stuff on this site. I happen to have some of it bookmarked, as IAAL (I Am A Lawyer).

There's also a listing of other cases where this ruling has been applied. One of the most interesting is United States v. Villarman-Oviedo, which is a narcotics case where the admissibility of the evidence was confirmed despite the fact that the expert was obviously drunk when he took the stand.

Also, the arson case of United States v. Diaz where the handwriting expert's opion was admissible, despite the fact that the handwriting expert was actually a phrenologist.

Clearly, this ruling has hand a profound negative impact on our judicial system.

Thomas Penfield Jackson is a Reagan appointee. Colleen Kollar-Kotelly is a Clinton appointee. Interesting how the Democrats turn out to be the ones who don't care about the end consumer, huh?

Thomas Penfield Jackson is a Reagan appointee. Colleen Kollar-Kotelly is a Clinton appointee. Interesting how the Democrats turn out to be the ones who don't care about the end consumer, huh?

In the US, there are basically 3 layers of courts: the trial courts (formally known as the District Courts), the appellate courts (Court of Appeal), and the Supreme Court. The Courts of Appeal are divided into 13 different circuits, each circuit handling a particular territory (except the Federal Circuit) or type of case (for the Federal Circuit). A map of the Courts of Appeal is located here. Precedents from the Court of Appeal level are only applicable to the states in the Circuit. For example, a Ninth Circuit decision has no binding effect on Florida, but does have binding effect on California, Arizona, Nevada, and a bunch of other states. Decisions of the Supreme Court are binding on the entire country.

Since the DMCA is a fairly new law, I do not know if any appellate court has ever interpreted it. If the provision at issue in the DVD case has not been interpreted by a Court of Appeals in the Circuit of the case, the judge is free to interpret the law as she sees fit (based on, for example, legislative intent and policy issues).

The judge in this case, Susan Illston, is part of the Northern District of California, which is a part of the Ninth Circuit Court of Appeals.

In the US, there are basically 3 layers of courts: the trial courts (formally known as the District Courts), the appellate courts (Court of Appeal), and the Supreme Court. The Courts of Appeal are divided into 13 different circuits, each circuit handling a particular territory (except the Federal Circuit) or type of case (for the Federal Circuit). A map of the Courts of Appeal is located here. Precedents from the Court of Appeal level are only applicable to the states in the Circuit. For example, a Ninth Circuit decision has no binding effect on Florida, but does have binding effect on California, Arizona, Nevada, and a bunch of other states. Decisions of the Supreme Court are binding on the entire country.

Since the DMCA is a fairly new law, I do not know if any appellate court has ever interpreted it. If the provision at issue in the DVD case has not been interpreted by a Court of Appeals in the Circuit of the case, the judge is free to interpret the law as she sees fit (based on, for example, legislative intent and policy issues).

The judge in this case, Susan Illston, is part of the Northern District of California, which is a part of the Ninth Circuit Court of Appeals.

In the US, there are basically 3 layers of courts: the trial courts (formally known as the District Courts), the appellate courts (Court of Appeal), and the Supreme Court. The Courts of Appeal are divided into 13 different circuits, each circuit handling a particular territory (except the Federal Circuit) or type of case (for the Federal Circuit). A map of the Courts of Appeal is located here. Precedents from the Court of Appeal level are only applicable to the states in the Circuit. For example, a Ninth Circuit decision has no binding effect on Florida, but does have binding effect on California, Arizona, Nevada, and a bunch of other states. Decisions of the Supreme Court are binding on the entire country.

Since the DMCA is a fairly new law, I do not know if any appellate court has ever interpreted it. If the provision at issue in the DVD case has not been interpreted by a Court of Appeals in the Circuit of the case, the judge is free to interpret the law as she sees fit (based on, for example, legislative intent and policy issues).

The judge in this case, Susan Illston, is part of the Northern District of California, which is a part of the Ninth Circuit Court of Appeals.

In the US, there are basically 3 layers of courts: the trial courts (formally known as the District Courts), the appellate courts (Court of Appeal), and the Supreme Court. The Courts of Appeal are divided into 13 different circuits, each circuit handling a particular territory (except the Federal Circuit) or type of case (for the Federal Circuit). A map of the Courts of Appeal is located here. Precedents from the Court of Appeal level are only applicable to the states in the Circuit. For example, a Ninth Circuit decision has no binding effect on Florida, but does have binding effect on California, Arizona, Nevada, and a bunch of other states. Decisions of the Supreme Court are binding on the entire country.

Since the DMCA is a fairly new law, I do not know if any appellate court has ever interpreted it. If the provision at issue in the DVD case has not been interpreted by a Court of Appeals in the Circuit of the case, the judge is free to interpret the law as she sees fit (based on, for example, legislative intent and policy issues).

The judge in this case, Susan Illston, is part of the Northern District of California, which is a part of the Ninth Circuit Court of Appeals.

I am not a huge conspiracy theorist myself, but playing devil's advocate on this is irresistable - do you really think that simply because the agency reported only 16 or 18 wiretaps for the given years that only 16 or 18 actually took place?

Table 3
Major Offenses for Which Court-Authorized Intercepts Were Granted
Pursuant to 18 U.S.C. 2519
January 1 Through December 31, 2002

Other
Racketeering
Homicide and Assault
Narcotics
Gambling
Kidnapping
Bribery
Larceny, Theft, and
Robbery
Loansharking, Usury,
and Extortion

See report for numbers.

Another interesting table is this one. It gives $/tap. The average cost is over $50K. That suggests that a wiretap is going to take a big bite out of almost any agency's budget (average cost for the Feds is $75K). The cost may be the best protection of our privacy. Certainly it seems a better bet than the judiciary.

Finally, there is the table which shows arrests and convictions. Slightly over half of the arrests related to wiretaps result in convictions. Does anyone know how that compares to investigations without wiretaps? It suggests that more than half of the wiretaps were in response to some broken law. Hopefully they were good laws, rather than DMCA-style disasters.

In short, one could almost imagine that the folks in the tin-foil hats are crazy to worry about the cops tapping their computers.

Another interesting table is this one. It gives $/tap. The average cost is over $50K. That suggests that a wiretap is going to take a big bite out of almost any agency's budget (average cost for the Feds is $75K). The cost may be the best protection of our privacy. Certainly it seems a better bet than the judiciary.

Finally, there is the table which shows arrests and convictions. Slightly over half of the arrests related to wiretaps result in convictions. Does anyone know how that compares to investigations without wiretaps? It suggests that more than half of the wiretaps were in response to some broken law. Hopefully they were good laws, rather than DMCA-style disasters.

In short, one could almost imagine that the folks in the tin-foil hats are crazy to worry about the cops tapping their computers.

Another interesting table is this one. It gives $/tap. The average cost is over $50K. That suggests that a wiretap is going to take a big bite out of almost any agency's budget (average cost for the Feds is $75K). The cost may be the best protection of our privacy. Certainly it seems a better bet than the judiciary.

Finally, there is the table which shows arrests and convictions. Slightly over half of the arrests related to wiretaps result in convictions. Does anyone know how that compares to investigations without wiretaps? It suggests that more than half of the wiretaps were in response to some broken law. Hopefully they were good laws, rather than DMCA-style disasters.

In short, one could almost imagine that the folks in the tin-foil hats are crazy to worry about the cops tapping their computers.

In criminal cases, if the government loses, they can't appeal. In civil cases such as this one, both sides may appeal. The Appeals Process.

While looking up Judge Wilson from this article, someone with some respect for the difference between a technology and its application, I noticed that the page template looked familiar. Turns out that ol' Judge Charles F. Eick is a few floors down from Judge Wilson in the same building.

In case your memory is decaffinated at the moment, Eick is the judge that ruled to force SonicBlue to spy on its ReplayTV owners to collect copyright infringement proof against them for movie studios plaintiffs in a lawsuit, a ruling fortunately overturned by another judge.

Well, it turns out that a citizen's panel is reviewing Judge Eick for reappointment and needs our opinion regarding his judicial conduct. Deadline is May 5. Maybe the first step to winning the war for privacy is to make sure judges sitting on benches understand that whole 4th amendment thingie?

While looking up Judge Wilson from this article, someone with some respect for the difference between a technology and its application, I noticed that the page template looked familiar. Turns out that ol' Judge Charles F. Eick is a few floors down from Judge Wilson in the same building.

In case your memory is decaffinated at the moment, Eick is the judge that ruled to force SonicBlue to spy on its ReplayTV owners to collect copyright infringement proof against them for movie studios plaintiffs in a lawsuit, a ruling fortunately overturned by another judge.

Well, it turns out that a citizen's panel is reviewing Judge Eick for reappointment and needs our opinion regarding his judicial conduct. Deadline is May 5. Maybe the first step to winning the war for privacy is to make sure judges sitting on benches understand that whole 4th amendment thingie?

• Also, offering linux for PS2 can't hurt.

Yeah, they don't oppose and even encourage Linux on the PS2. That's important around here.

Also, they sell (sold? haven't seen one recently) CD-RW drives, DVD-RW drives, MP3 players, etc. even though they are into producing content in a BIG way.

Their laptops are cool (but pricey) and run Linux pretty well.

They just seem to "get it". They may be bare knuckled when dealing with competitors and collaborators, but they make/sell and support things that people want, without regard to some grand lockin strategy. Unlike certain Massive Software vendors I can think of.

Sony also faught MS on the provisions in Windows licenses sold to PC Manufacturers that would limit their ability to sue MS over patent infringement. On the other hand, Sony did make a side deal with MS so that provision of the Windows' licenses didn't apply to them, which could be viewed as a way to attack other PC makers.

Looks like the Bankruptcy case for Sonic Blue will be held in the Northern District of California Bankruptcy court. Judge Marilyn Morgan is hearing the case. Here is a link about the sale of Replay and Rio: Sale of Replay, Tues 15th April 2003 ~Robert

Bzzzt! Wrong, troll boy.

Your claim is an old chestnut, and an easily refutable one at that. Despite what the propaganda you posted claims, the courts have not been unanimous with regard to the Second Amendment. Furthermore, an eminent legal scholar, one who writes law-school textbooks on the Constitution (i.e., has forgotten more than you'll ever know about this issue), begs to differ with you. Further, many state constitutions contain provisions giving individuals the right to keep and bear arms.

In order to avoid embarrassments like this one in the future, try posting something other than Sarah Brady's talking points.

Class dismissed.

But maybe that don't matter

The U.S. Copyright Office should not be used as an substitute yet uber-patent office. By adding any sort trivial addition to a mechanical device to lay a DMCA claim, one can create in effect a de facto patent protection of a commercial device, but with a much longer or unlimited term, and with a free ride of enforcement by the U.S. Government. This is clearly not what Copyrights are intended to protect.

Imagine an automotive company wishes to force people to purchase only tires manufactured by themselves. They first attempt to force consumer choice by patenting the idea of round tires, but the US Patent Office rules (correctly) that their design has not unique and denies the application. All the MBA's in upper management are crushed.

"Fear not," their lawyers cry, "we'll get something better...we'll get you protection -- and not for a patent's measly 20 years. No we'll give you 120 years of protection...AND the U.S. Government will investigate violations and enforce this 'uber-patent' for you."

"But How?" cry the hopeful executives grateful disbelief.

"But won't our better priced competitors just put the same dime's worth magic in their tires and we'll be back where we started?" wails a VP from under the table of the conference room where they've all gathered.

"...Patents?..." offers a hopeful senior manager.

"But the car's owner...isn't he already the, um, owner of the car and can do what he wants with his property?" worries the CEO aloud. "Isn't he allowed to buy from the competition? Won't we have to forced him to signed a service contract or something that say he must make all future purchases from us."

--

For those concerned that 120 years isn't long enough, a company needs only every 119 years just to change the "Quality Verification Tag" and get a whole new Copyright to fend off any and all competition -- for literally until the end of time (or at least the end of the DMCA)." Disney's aspirations ain't go nothin' on Lexmark.

Those who help create the U.S. Constitution wrote in Article I, section 8,

"Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries..." [Note: though already clear, emphasis added]

The only way Microsoft could have a remote chance to make a EULA binding would be...

Click-through EULA's have been found to be entirely enforcable - see Specht v. Netscape/AOL. In this case, the license was found to be unenforcable, but only because the user didn't have to click on "I agree" or something similar before installing the software. The decision says "The primary purpose of downloading is to obtain a product, not to assent to an agreement. In contrast, clicking on an icon stating "I assent" has no meaning or purpose other than to indicate such assent. Netscape's failure to require users of SmartDownload to indicate assent to its license as a precondition to downloading and using its software is fatal to its argument that a contract has been formed." Also see Register.COM v. Verio, Inc. where a "by submitting a query, you agree to the terms of this license" clause was found enforcable. In the case of the Windows XP license, you have to click the "I Agree" button before installing, making whatever terms are in the EULA enforceable according to either of these decisions.

So, where have you been in the last 5 or so years?! If you read Judge Mott's ruling about the Sun vs. M$ case it clearly shows that m$ abused yet another contract with another company.

The reason he is forcing them to bundle it is because they did cause harm to Java in more ways than one and that deserves a correction now instead of worrying about it later; as was the case of Netscape. Argh! Ya know, you need to get your shit straight and present the facts when posting stuff like this. Sure, someone reading your post would be like "yah, market forces dude! What are we now, commies forcing successful companies to carry stuff they don't want?"

Gee, and oh yah, weren't they already convicted of being a freaking monoploy?!?! Um...

I've been developing with Java for 7 years and while it's not perfect, I'll never go back to m$ development for many reasons.
- They're a highly unethical company. for a small taste see here, here, and here...
- Like someone else said, profits first, users second
- Welcome to a m$ only development world. I applaud the Mono guys and the dotGNU guys, but just wait until m$ wants to flex its patent muscle. Profits first, lock in second, whatever after
- Bugs & security. Welcome to the jungle
- Horrible, god awful, slave, er, customer service
- Service pack # 539.. and counting..
- Worms, attacks galore and shotty patch record. Just that alone would make me steer clear of that platform.

Java isn't the holy grail and I'm not looking for that. But its developer community is much better than M$s' and has its roots in the *nix world, which frankly, I'd rather have my foot in than the DOS world.

Oh, and by the way, before I bailed from ASP/VB/<fill in other m$ crap here>, I was in a constant state of perpetual screwed-ness with M$ products! .NET, and C# for that matter, might be a better development platform than VB and such, but they still have the same 'fuck the world at everyone's expense' mentality behind it. I've learned that the hard way.. Good luck!

I am a former employee of a Lexis-Nexis subsidiary called Lexis Document Services. I know getting information from any level of the government is not free. You either pay by taxes or user fees.

For example, if look up information at the US District and US Bankruptcy courts they charge fees.

LDS performs hard copy searches of court records in municiple, county, state, and federal jurisdications across the US. The customers paid for someone to physically to go to clerk offices and request documents on pending suits, pending judgements, UCC filings, bankruptcies, etc.. The customer could have done this themselves. They would have to know which clerk to search and still have to pay a fee to the jurisdication for the documents.

Heinlein would say TNSTAAFL