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Judge Conflicted Interest in MPAA/2600 DeCSS Case?
vm writes "It turns out that Judge Lewis Kaplan used to advise Time Warner on DVD issues in the past. He also has past issues with one of the attorneys on 2600 Magazine's legal team; Martin Garbus. The New York Linux Users Group is holding a protest outside the federal court house this morning in support of Goldstein and crew. For more details, see this EFF DVD update or the NYLUG website."
But on the other hand, in this case DeCSS is clearly breaking the law (DMCA) and they are guilty. The only hope is that this goes to a court that can look at the constitutional legality of the DMCA (the Supreme Court?) and actually rule the DMCA illegal. Which we all pray that will happen, but it will take a lot of money on 2600's part to do it. And there is no telling if it will be declared unconsitutional for that matter.
I thought someone said there was going to be free beer!
and we had a ton of support...
despite Slashdot's very late posting...
Anyway, pictures are here for all to enjoy...
Pictures of:
-- The Funk, The Whole Funk, And Nothing But The Funk
The mere appearance of a (credible) conflict of interest is usually enough for a judge to recluse himself. The real issue isn't that the judge can't put the conflict behind him - it's the fear that the public will lose confidence in the impartiality of the courts.
That's why the fact that the judge's firm once worked on a DVD case doesn't bother me too much, but the personal animosity displayed towards the defendant's lawyers *does*. It won't take many arbitrary decisions that harm the defendants (e.g., regarding scheduling, admissibility of evidence, etc.) for a reasonable member of the community to decide that the most important thing to bring to this judge's court is not the facts, nor is it the law. Bring his golfing buddies - the ones who let him win - if you want to win.
*That* perception will kill the public's faith in the courts, and the extreme violence in drug trafficking shows what happens when people are denied access to fair courts. (To revisit an earlier discussion, it's one of the reasons I support decriminalization of the low-level trafficking to adults. I would rather see small drug deals gone bad end up in small claims court than gun battles with collateral injuries and deaths!)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
A Defence Attorney, who has been practising for 30 years and has much experience in Federal Court, told me that there is nothing a Federal Judge hates more then being overturned on appeal. Kaplan would not not hand the Defence the perfect way to get his decision overturned by the Court of Appeals.
He was a partner in the antitrust practice of a firm that had Time Warner for a client with respect to DVD issues and possibly antitrust aspects of DVD issues.
In a large law firm, not every partner knows the details of every client. There is no allegation that Kaplan himself actually worked on the Time Warner case. That kind of information is just not available to the defense unless they happened on a document that he wrote.
The motion to disqulaify is based on an appearance of conflict.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Anomalous: deviating from what is usual, normal, or expected
Canard: a false or unfounded repor
Which he did. It's a bad law, but DeCSS pretty clearly circumvents an access control device, and the law doesn't care for what purpose - all such circumvention is proscribed.
That whole line is dead. Kaput. CSS does not prevent any sort of access.
It's been concluded several times on the list that CSS is a market control measure. That's all.
I know the strength of CSS is not an issue. Under the DMCA efficacy doesn't matter. What matters is that CSS does not in anyway prevent piracy (access control).
The message on the other side of this sig is false.
All right now, how distant was this connection?
We all know of the accusations against the lead defense attorney, and how he "worked for TW" when in reality he defended a small company owned by a larger company which then got bought by a division of TWC. We all scoffed at the accusation, because it was such a weak link that a conflict of interest was almost impossible to visualize.
But now are we on the other side? Was this connection a direct one? Was it a thread of connections looping through 5 different companies where the job happened 15 years ago? If people are to take us seriously, we can't claim one is just loony and the other is a "serious conflict of interest."
Anyway, that's my two cents. Be careful about playing both sides of the fence.
http://kered.org
Why do we bitch and moan about the media (people who basically only know the words 'Linux' and 'hack', not the real meanings) reporting that Linux is only for hackers? We can't do so if we have groups named 'New York Linux User's Group' protesting in support of a web site with content related to hacking. What they should have done is say that 'We are a bunch of individuals with our own independant views on this case which all are in support of 2600' (as I hope they are). It is much harder to dismiss a huge number of individuals than a group.
Molog
So Linus, what are we doing tonight?
So Linus, what are we going to do tonight?
The same thing we do every night Tux. Try to take over the world!
Kaplan violated Federal law by hearing his own recusal. Specifically he violated 28 USC 144.
The foundation for a claim of bias is provided by 28 USC 455 especially (b)(2) and (a).
The procedure for handling this is provided by 28 USC 144:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Basically, Kaplan cannot just decide the motion on his own bias. He MUST appoint another judge to hear it. He didn't. He is also not allowed to proceed. This trial is a sham!!
When presented with a signed affadavit from Mr. Kurnit (stating Judge Kaplan had questioned the integrity of Mr. Garbus in telling peers not to associate with him) Kaplan still didn't recuse himself, in effect calling his former colleague a liar. Kaplan is hell-bent on becoming part of history - he wants his name on this case.
Kaplan is clearly going to rule in favor of the Plaintiffs. Even if Kaplan's bias becomes cause for successful appeal, it just means we are back at square one, only poorer.
Good heavens Miss Sakamoto - you're beautiful!
He should have recused himself as soon as he found out what the subject of the trial was.
James
Tux, the penguin has got a new mate. His name is Lewis. Oh, isn't he cute!
Say no to software patents.
The legal system consists of 100's of millions of lines of cruft, NOT ONE LINE OF WHICH HAS EVER BEEN TESTED TO SEE IF IT WORKS!!!
Imagine for a second that we wrote 100 million lines of code to control a nuclear reactor, and that nobody ever checked any of it. We just put the code into the computers and took over control of an actual working reactor without testing. I think that everyone who knows anything about programming would agree that would be a horrendously irresponsible thing to do. Yet, nobody seems to have any problem with putting completely unchecked legal code into the much more dangerous human control system of the law; THIS IS ABSOLUTELY INSANE.
How can the legal system be tested? A preliminary step would be to take 1000 innocent defendants around the country, trump up charges against them, run them through the criminal justice system and see how many of them are convicted. That would give us an idea of the false positive error rate of the legal system.
The question I have is this: "How could anyone, who is not monumentally evil, object to testing the legal system; what would you be afraid of - spending a little time and money to see if we know what we are doing?"
The accidental testing of the legal system which was done by DNA work on death row inmates in Illinois is appalling; about half of the death row inmates were shown to be innocent by the testing. Surely capital cases are the ones where we have to be the most sure, and yet the legal system produced a 50% error rate when it was checked. It was so bad that the governor of Illinois was forced to suspend executions in the state! A 50% error rate means that you could do just as well by flipping a coin!
It is high time that we checked to see if the people in the legal system have so much as a clue. I suspect that when we do, we will find the results of testing ghastly. My prediction, based on my own analysis of how the legal system works, is that about 90% of the innocent defendants run through it will be convicted. When dealing with the lives and freedom of people I suspect that no one but a psychopath can find a 90% error rate acceptable.
Well, this is a lot like politicians getting private industry jobs after they leave office; it isn't direct conflict of interest, but it is clearly conflict nonetheless. The judge shouldn't even wait for the disqualification filing to be ruled on. He should just recuse himself.
Even assuming the judge tries to rule honestly without letting his former status sway him, you would think he probably has some strong preconceived notions.
(a) Violations Regarding Circumvention of Technological Measures. - (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
Doesn't this mean that none of these laws come into play until next year? Does anyone want to help me out here?
In view of the nature of this matter, the alleged facts of a prior representation of Time-Warner, if true, make the conflict of interest clear. If they are as reported, Judge K should recuse himself as a matter of course.
But things are rarely what they seem -- reporting of technical legal matters, as with technical technical matters, in my experience, is rarely accurate.
Imagine for a second that we wrote 100 million lines of code to control a nuclear reactor, and that nobody ever checked any of it. We just put the code into the computers and took over control of an actual working reactor without testing.
I was having a discussion with someone a few months ago about how lawmakers could potentially learn a lot from computer science types of theory. Obviously not for everything, but there are parts where it makes sense. Particularly with simplification through effective re-use of effort.
Put simply, the language that law is written in needs variables. Laws should state the reasoning behind them instead of what they are, and what they are should be derived every time they're interpreted.
Without being a lawyer, my impression is that there are a lot of legal documents that get written incredibly specifically, and then sit on a shelf for 100 years until someone (who matters) notices that they need updating.
The best example I can think of is a committee that I'm on. We recently had a revamp of our society constitution, typed up by a chap in his 60's (actually he had his secretary to type it for him). I complained about an update to some wording to now include that notification can be by "email or fax".
Honestly he would have to be kidding. Constitutions of any sort take years to change once they're noticed meaning that 50 years from now we'll be stuck with the words "facsimile" and "email" in our constitution. There's no telling how the definitions of these words could change over time or even if they'll still exist, and the actual point was supposed to be "reliable communication". We could have easily said this and then had more dynamic external specifications stating what reliable communication was.
The irritating thing is that I lost, because he was the lawyer (well.. judge, actually) and I'm a young computer geek meaning I definitively don't know anything about it. I put it down to the legal profession being so pedantically paranoid about being specific because they don't have a clue how to write anything dynamically and keep it reliable.
I know we're still continually learning how to effectively do this ourselves, but to me it seems we're well in front of the legal profession - which isn't showing any signs of progress at all.
===
Darn, no moderator points to spend. But I have never seen such a concise and relevant explanation of the status of deCSS. Just like it's time to stop acception "pirate" as a synonym for "copyright infringer", it's time to stop accepting the presumption of deCSS' violation of DCMA.
The Mongrel Dogs Who Teach
I followed the link above, and saw an article describing Garbus's cross-examination of Michael Shamos. Nothing there about the judge refusing the motion.
--
send all spam to theotherwhitemeat@ropine.com
Copyright law and the U.S. Supreme Court's 1984 "Betamax" decision provide for "fair use" of copyrighted material. For example, scholars and critics can quote lines from a book in a review without fear of incurring copyright liability. Or, a soap opera fan can tape an over the air TV show during the day to watch later that night -- under the Betamax decision, an unscrambled broadcast can be copied for this type of "time shift" personal use.
BUT "fair use" is not an open-ended concept. It does not justify any action an individual may take with a copyrighted work, whether they have purchased the copy or not. It is a right to use what is available, not a right of access to works for fair use purposes. For example, the law has always recognized that a show sent by scrambled pay-per-view signal may not be viewed or copied through the use of an unauthorized, illegal descrambler. The owner of the signal has - and has always had -- a legal right to scramble the signal to prevent unauthorized access to the signal for viewing or to make copies of the show.
Most importantly, this concept of fair use does not override specific statutory enactment such as the DMCA, which are intended by Congress to give clear protection to the rights of the creative community to use technological means to protect its product. It is this protection which has enabled the motion picture industry to launch new products in digital format, such as DVDs.
Appeals are likely. Don't look for resolution anytime soon.
And the protest in front of the courthouse is permitted to run until 5pm, so if yer reading this and are still nearby, get out there!
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
The real question is why it took as long as it did for this to come out into the open?
It was discovered by the defense in depositions taken last week. It is possible that Kaplan never knew of the specific work that his firm was doing for Time Warner.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Anomalous: deviating from what is usual, normal, or expected
Canard: a false or unfounded repor
I Understand perfectly that there is a conflict of interest, and that it is serious. I don't dispute that whatsoever. I'm not saying 'leave the judge alone'.
What I'm saying is, it's not necessarily a conspiracy, or even intentional. It just so happens that this judge, in the past, has dealt with the party before under different circumstances. A problem for the bench? yes. intentional conspiracy? I doubt it.
No matter what the results of this case show we have already won. Sure, American developers won't be able to distribute this DVD software, but don't worry about that. In this world are places and countries that are far from the authority of the USA and the MPAA.
We may have won part of the battle - the continued availability of DeCSS.
But by even being sued we're losing another part - the right to exercise our rights without penalty.
Think what a "chilling effect" it is on the exercise of these rights when every programmer who does so finds himself harassed via the legal system.
Yes there are a lot of us. But losing one - or years of his productivity and the bulk of his assets - for every program written that annoys an established interest is not, IMHO, acceptable.
We need to go beyond keeping the software alive out-of-jurisdiction, and beyond even winning this case. We need to get to the point where we, via the very legal system now being used to harass us, can drastically punish the opposing interests for misusing that system in this way.
Bullies won't stop attacking you until attacking you gets them hurt.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Unless I misunderstood here, Garbus didn't make his motion (admittedly accompanied by an affidavit) until just before the trial started. It is therefore untimely under the statute, giving Judge Kaplan far more leeway as to how to procedurally dispose of it.
Um, I think YOU didn't read the part about or good cause shall be shown for failure to file it within such time
Garbus did just that (for the Time Warner Connection). He learned of Kaplan's firm's representation of TW with respect to DVD antitrust just 48 hours before.
In fact, Kaplan admits this is timely in his ruling denying the motion to recuse. His arguement was basically that antitrust isn't an issue in the trial -- which is absolutely bogus.
I've been discussing the legalities of this case since it's inception at Openlaw. It's been a major topic from day 1. A search of the Openlaw mailing list archives for "antitrust" retrieves 397 posts.
In fact, I think Garbus was quoted in a magazine as talking about US v. Paramount
On July 14 EFF's defense team filed a motion to disqualify Judge Lewis Kaplan from presiding over the DeCSS trial after discovery revealed that he advised Time Warner on DVD matters while in private practice. Judge Kaplan was a partner in the powerhouse NY law firm Paul Weiss when he counseled Time Warner, a plaintiff in the case, on antitrust issues related to DVD technology, an issue to be decided in this case.
2600's defense team has also learned that while in private practice, Judge Kaplan accused its lead litigator, Martin Garbus of professional misconduct and cautioned a co-worker against taking a position in Garbus' law firm. Both incidents create a conflict of interest for the Clinton-appointed federal judge, who has pushed for a speedy trial since the initial court appearance.
Worked directly for one of the major players in an advisory capacity (so he basically worked for the plaintiff) and has what appears to be a rather sizeable grudge against the defendant's lead attorney.
Connection looks pretty direct to me.
---
Gort! Klatu Barata Nikto!
Thanks to Eddan Katz off the EFF for forwarding these to the dvd-discuss list at Openlaw:
Martin Garbus affidavit supporting the motion for recusal/disqualification:
Memorandum of Law supporting the motion for recusal/disqualification:
I apologize for my recent "sabbatical" from the slashdot community, but as you would maybe know I had been frozen in ice, thawed out, and been in the attendence of several law classes at Harvard Unviersity. With my bar examination approaching, I decided it would be a good idea to brush up on my law here.
Now I want you all to understand something. I am just a caveman, who was frozen in ice and thawed out by your modern people. Your world frightens and confuses me!
When I check the time on my brand new Rolex, I wonder if little magic pixies inside are turning the hands. When I watch one my 7 HBO channels in my 60 inch big screen television, I think to myself "how did these people get trapped inside this giant box?" And when I drink a bottle of vintage Dom Perignon champagne from a crystal glass, I wonder if the burning sensation from the bubbles is really caused by tiny demons who live inside the champagne and are trying to get inside me and kill me. My primitive ways and customs prevent me from understanding your modern culture.
But there is one thing I am certain of! 2600 pretty much has no hope of winning at this court level. Not only is Judge Lewis Kaplan promote firm and strict adherence to the poorly written DMCA, but he is clearly acting on his past bias as shown by his refusal to recuse himself for conflict of interest or even allow Garbus to speak on such. The only legal advice my caveman mind can offer is for 2600 to ride this loss and take it to a higher court, placing emphasis on Kaplan and his obvious bias and conflict of interest in favor of the MPAA. Thank you for your time.
OOG THE OPEN SOURCE CAVEMAN!!! OOG BREAK HEAD WITH OPEN SOURCE CD!!!
Look at it from this point of view...
Generally, most people here agree the DMCA is a bad law. Most will (probably) also agree that DeCSS violates this law.
Kaplan is looking at this from a very narrow interpretation of "Does DeCSS violate this law?" and I think this is a good thing. We'll get through this section of the trial quite quickly. Kaplan will hand down a decision saying basically "Yes, DeCSS violates the anti-circumvention provision of the DMCA."
Then we move to the Appellate Court, where Constitutional issues are more properly decided. (Maybe to the Supremes after that, I don't know.)
This is where we want to go. The faster we move to the Appellate level, the better.
Kaplan may not like us, but he is helping us.
Nifty, huh?
This is my sig. There are many like it but this one is... Oops. Frank, I've got your sig again! Where's mine?
No matter what the results of this case show we have already won. Sure, American developers won't be able to distribute this DVD software, but don't worry about that. In this world are places and countries that are far from the authority of the USA and the MPAA.
Further development of this product is occuring worldwide right now. The results will be accessable through the world wide web.
This is just like when pgp was deemed to be a dangerous munition in the USA and forbidden for export. But it was still fully accessable to everyone on the internet, wasn't it?
So, just take a deep breath and know in your heart of hearts that we have won already. What this one man who has already decided the guilt of the defendants in this case says about the matter is meaningless.
We, the people of the world, have already spoken on the matter and we find the defendant innocent.
-- Never make a general statement.
I'm not sure it's better, given that it makes it easier to overturn it while leaving the DMCA constitutionality issues unaddressed.
Of course there's enough here to be outraged about, maybe it'd just be greedy to pick on DMCA as the most important principle. After all, I'm recalling the first news here on this topic, where from the very first it was apparent that Kaplan was a "hanging judge".
Should any of this surprise any of us? Local, State, and Federal legislatures pass 75,000 new laws per year. Most of these laws (like DMCA) were proposed, WRITTEN, and lobbied for (with millions of contribution$ thrown in) by special interests. It's been proposed that Microsoft got busted by the Feds largely because they didn't lobby and spread the wealth around Washington. Which is why they get busted up (though they deserve it for their horrendous buisness practices), while other monopoly cartels like the RIAA and MPAA get their way. With 75,000+ NEW laws a year passed, that we ALL are bound to obey on penalty of fines/imprisonment, with ignorance no excuse, it's no wonder lawers can seemingly be hired to destroy any anti-establishment person, business, etc that the "Tortocracy" is offended by. Next time the Federal Government gets "shut down" rejoice! That day we aren't losing another freedom. Ironic that Microsoft's main PR argument is the loss of the "failure to innovate". The DMCA seemingly has made immovation illegal unless you are a billionare who can afford teams of lawyers.
In 2000 America, is a non-lawyer truly free?
Available here. Kaplan refuses the recuse request!
But on the other hand, in this case DeCSS is clearly breaking the law (DMCA) and they are guilty.
They aren't. I've got work to do. See This Thread: It's not an access control device
The message on the other side of this sig is false.
This trial is quickly turning into a kangaroo court, and it is only the fact that someone like Garbus is the lead attorney that may prevent this from becoming a VERY Bad Thing (tm).
... hi bingo
I'm not a lawyer, but aren't judges prohibited from presiding in cases that they are not impartial on?
IANALE (IANAL either), however, since the only real check and balance in this situation is the judge's own personal honor, to voluntarily step back and let someone else preside over the case, the effective answer to your question is "No." In Kaplan's case, he has demonstraded quite clearly that he has no honor or integrity whatsoever.
As another noted, this will be decided on appeal. The results of this trial are a forgone conclusion, and quite probably already paid for in advance.
Perhaps Kaplan could be impeached for knowingly presiding over this case with such a flagrant conflict of interest, but judges almost never get impeached. Even judges who commit heinous acts, such as raping a woman in their courtroom (it has happened) are difficult to dislodge. Something as innocuous as denying the little guy justice in favor of a large corporate cartel doesn't stand a snowball's chance in hell of getting any public attention - a prerequisite to any kind of reparation or justice.
The Future of Human Evolution: Autonomy
Molog
So Linus, what are we doing tonight?
So Linus, what are we going to do tonight?
The same thing we do every night Tux. Try to take over the world!
Well, it's government regulation that's keeping us from having hovercraft, in which case we wouldn't need roads.
Just a thought.
In the absence of government, people will figure things out on their own.
--- "So THAT's what an invisible barrier looks like!" - Time Bandits
Gee, conflict of interest? That's only the start of it. What you have here is a vast, movie-producing conspiracy against our anarchist beliefs! Every level of the govt. is involved - from the Drug Nazi's to the Dept. of Justice and Other Lawsuits. Stop the Govt. now!
This post brought to you by the number 2600 and the tag <ul>.
Umm.. okay.
A lawyer used to advise some company..
and many years later, he is a judge, and somehow it's conspiracy?
If the motion goes through and the judge is removed from the case, could it get thrown out? Or is this just another delay untill they get another judge? Anyone with knoledge of the law care to comment..
IANAL...
1201(a) doesn't come into play yet, so you are allowed to use DeCSS all you want, until October of this year.
However: 1201(b), having to do with manufacturing, importing, trafficing in, etc. things that circumvent, doesn't have any time-delay clause, so it's in effect now.
You can use DeCSS for a few more months, but you can write it, distribute it, etc.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
...because how seriously can you take a non-lawyer who can't even spell "appeal"?
IAAL, and there are so many things wrong with the above post logically and legally that I would prefer you simply drop it into the karmic bit box.
Moderators, if you're not proficient in or informed about the subject of the post (microprocessor design, law, hot grits, programming, ice hockey, etc) THEN DON'T MODERATE IT UP!!!
It's bad enough that people who don't know what they're talking about are posting. It's far worse when people who don't know about the subject of the posts are moderating them.
A post with text similar to "I am not a (whatever), but..." should be karma'd to -1 UNLESS YOU KNOW ABOUT THE SUBJECT AND CAN CONFIRM ITS ACCURACY!!!
But what I really like is this link of a harvard.edu/Law School website. For of those of you who are curious, the title of the page is, "Where can you find DeCSS?" I guess they have a bunch a ppl running around saying, IAAL...
Not that Kaplan has exceeded the bounds of judicial conduct, but he has been very antagonistic towards 2600 & their lawyers. It might also explain why he didn't dismiss Garbus when the plaintiffs asked him to - he's looking forward to handing him a high-profile lost case.
--
E_NOSIG
It seems to me that a judge who used to be on the payroll of one of the parties in a case is clearly in a conflict of interest. Don't judges usually dismiss themselves as soon as they are assigned a case like this? Could someone with some real legal training explain to me and my IANAL brethren how the judge could think about presiding over this case. Thanks.
-B
The sad truth is that 2600 is gonna lose this round. Kaplan's not interested in considering the constitutional merits of the DMCA, just whether Eric Corley violated the statute as written. (Which he did. It's a bad law, but DeCSS pretty clearly circumvents an access control device, and the law doesn't care for what purpose - all such circumvention is proscribed.) This is one for the appellate courts, IMHO.
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
The real question is why it took as long as it did for this to come out into the open. Judge Kaplan has to have known what he did in the past; he should have recused himself at the very start of the trial. Did he really think that it was OK to preside over a trial where he had consulted for the plaintif on matters of relevance to the trial in the past?
There's no point in questioning authority if you aren't going to listen to the answers.
You can find plenty of information about copyright and its origins, as well as its evolution here in the US and in other countries. Aside from basic facts like those (which you can find links to on the eff.org site), you're not likely to find any "unbiased" interpretations of what it all means. Everyone has their own bias and every document I've read (I'm doing some research for a speech I've got to do for one of my classes) shows a certain bias in its take on why certain things were done and what certain things mean. I haven't found anything that could be considered unbiased, and I don't expect to. Like anything else, you just have to read both sides and try to extract bits of truth from the rhetoric.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
I would think that you would be able to get the appelate court to strike down the ruling simply because of the conflict of interest with the judge
Perhaps not struck down, but a retrial ordered at least. On the other hand, if Kaplan is really as scurrilous as some are making him out to be (rather than merely incompetent), perhaps he's laying the groundwork for such a strike down based on other factors than flaws in the DMCA itself.
Consider: perhaps he realizes that the DMCA is flawed with respect to DVDs and DeCSS. If he rules that way, or it goes to appeal and the appeals court rules that way, then MPAA is up the creek (from their point of view) as far as that goes. On the other hand, if the case is thrown out for other reasons, no ruling has been made on DMCA and the law can still be used to intimidate other folks.
-- Alastair
I was at H2K (no pun intended) and there was a point that one of Emanuel's attorneys made during the mock trial which is really interesting and true...
"Remember you are not here to decide if my client is guilty or not, you are here to decide if the DMCA is just and constitutional."
That probably wasn't his exact wording but you get the jist of it. I think the jurors should be aware of this fact; but then again they may not even know what the DMCA entails beyond this specific case.
Of course in the mock trial, he was found innocent (hmm.. i wonder if there was a biased jury? hehe) and a good time was had by all (even Bernie S. who was playing the role of Jack Valenti...who BTW had a "stop the mpaa" t-shirt on). However I now fear the worst, and can only hope that this case is moved up to the higher courts.
--
--
#nohup cat
After all this case has been destined to fail from the very beginning thanks to the vast and unfied forces lined up against it. Whilst we all know that DeCSS is a perfectly legal piece of software designed to facilitate playback under Linux, I think that very few people outside of /. and similar sites has any clue that this is anything other than a tool for the rampant piracy of DVDs.
Unfortunately since this case involves media corporations which are notorious for having their fingers in as many different pies as possible the coverage of this has been extremely biased in many places. And now we hear that the judge has helped the MPAA on DVD issues before? I suppose I should be suprised, but considering how the MPAA has twisted things so far I can't really say that I am.
Until America puts some kind of control on its corporate sector this kind of flagrant abuse of wealth and power seems likely to continue, at the expense of the little guy. Unfortunately since these corporations make so much money for the US government thanks to their freedom to gouge consumers and engage in dodgy business practices, it seems like the government has little inclination to change things.
Sure MS have been taken to court, but they were an extreme example of abuse of power and position. If they weren't so public they probably would have gotten away with it - hundreds of other companies do.
Unfortunately whilst it's still profitable for the government to allow it, you're going to keep getting situations like this where it is the commercial sector that gets the deck stacked in its favour.
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Jon E. Erikson
Jon Erikson, IT guru
After recently reading the amicus brief filed by the CCIA and ALU as well one by the IEEE, I know that at least the reverse engineering ruling will be in favor of the defendants. There's too much at stake to require every business to have to start from scratch when designing a better product. It's a waste of time, patience, talent, and hurts the economy by keeping businesses locked either at square one or in court when they could be innovating. It's not what you invent that counts but how you do it when you're talking about quality.
The case brought by the MPAA is also a joke by itself. They've got a weak argument about authorization. They have a circular argument that says you can use this player cuz we say so. Sorry that's like Ford saying we should all drive black Model T's.
But this just made my day. Originally I thought hey it's not like either side has been completely impartial (pirates stealing, MPAA causing people to lose their jobs), but having seen the affidavits posted on EFF.org, I'm just shocked Kaplan was ever let into this case.
The message on the other side of this sig is false.