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."

Comments

Apeal

[pcidevel]

IANAL - If I understand correctly, doesn't Judge Kaplan get to decide if it is a conflict of interest? The proposal will go to Kaplan who will deny it and the case will go on like normal. But after a ruling (Kaplan will rule in favor of the MPAA) it will garuntee that 2600 gets an apeal won't it? Thats really when 2600 will be able to play the "conflict of interest" thing to the apeals court and bring it to the next level.

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.

My Kingdom for a lawyer not associated with TWC!

[deander2]

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.

Re:The plot thickens

[bwt]

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!!

Does the law actually work?

[Veteran]

I have noticed a lot of posts on Slashdot where the posters are counting on the legal system to straighten out questions. I think we need to consider something about the legal system before we count on it to do anything useful.

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.

time to recuse himself

[MattW]

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.

Re:It's not an access control device

[isaac]

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 agree that this case isn't about "piracy"; it's about blocking unlicensed DVD players which might not include such "features" as Macrovision and region coding.

However, I don't think your assertion that CSS is not an access control measure is correct. It is, at heart, an access control measure that has nothing to do with "piracy". But the statue doesn't say anything about "piracy" - it defines an access control measure as anything that controls access to a copyrighted work. If CSS wasn't an access control measure, you wouldn't need to break it to view a DVD.

-Isaac

The memo and affidavit supporting this

[bwt]

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:

My take on this

[OOG_THE_CAVEMAN]

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.

We have already won.

[buckrogers]

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.

The motion to remove Judge Kaplan

[EnderWiggnz]

The motion to remove is located here

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).

Re:The motion to remove Judge Kaplan

[bwt]

Actually, the more chaotic it gets the better, because it makes it more likely that an Appeals Court will overturn the case.

I've been following the case very closely for a long time and I've noted what I thought was a clear bias on Kaplan's part, and I am not alone. John Young of cryptome has attended many of the hearings and he says that it comes across even stronger in person. This bias is different from ruling against the defense -- it's a clear attempt to deny them due process.

Some of the things that Kaplan has done that stink of bias are:
1. Refusing to delay the preliminary injunction hearing and proceding by teleconference, thereby setting an extremely prepared plaintiff against an extremely unprepared defendant.
2. Refusing, during the PI hearing, to hear expert testimony from the defense
3. Moving the trial date forward from Dec to July in response to allegations of plaintiff stonewalling during discovery
4. Refusal to delay the trial in response to the defense's motion that the schedule gave plaintiffs an unfair advantage
5. Scheduling accelerated discovery and refusing to appoint a magistrate to oversee it, despite defense motions that these unfairly aided the MPAA.
6. General and repeated rudeness towards the defense at nearly every opportunity

Re:It's not an access control device

[Sloppy]

CSS does not prevent any sort of access.

It does if you consider knowledge of the algorithm to be part of the access key. (Security through obscurity.)

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).

Unfortunately, under the DMCA, piracy doesn't matter either. The market control measure is the very thing that DMCA is protecting, not the copyright. So while the defense can bring up the point that piracy isn't an issue in this case, the sad fact is that the prosecution can also make the same point. All the MPAA has to do is admit that it's not about piracy (thereby looking bad and taking a PR hit) and they win due to the letter of the law.

It's simply a bad law. DeCSS and 2600 have broken this bad law.

IMHO, in the mean time while we wait for the law to be struck down or repealed, the best thing to do is to pervert the law by taking it to its extreme logical conclusion: make a DVD that current licensed DVD players can play, and then sue the licensed DVD manufacturers for breaking DMCA. DMCA doesn't say anything about licensing by an arbitrary party (DVDCCA) causing circumvention to be legal. The implication is that only the copyright holder can make it legal, so we just need a copyright holder who isn't part of MPAA. Then we can cause a stalemate by causing all DVD players, licensed or not, to be DMCA violators.

I am not currently working on doing this, but I would be willing to put up a couple hundred bucks to help fund such an effort. (It would require a DVD burner, knowledge of how to create as CSS-encrypted DVD, and a home-made movie (perhaps a movie of someone making a speech about why DMCA is so bad).)

---

Let's see here...

[11223]

• The judge is in league with Time Warner.
• Every news outlet is in league with some MPAA orginisation.
• The Govt. gets tonnes of money from the MPAA, and
• gives some back in exchange for anti-drug ads.

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>.

Re:Kaplan is (indirectly) helping

[bwt]

Most will (probably) also agree that DeCSS violates this law.

I'm tired of all the people who seem to take this for granted. If you read the statue you'll see several things that to me make it clear that DeCSS does NOT violate the statue:

(1) "Circumvention" is required for a violation, and this is defined as access without the authority of the copyright owner. The First Sale doctrine should apply and say that the copyright owner volunatarily parts with his rights of control as soon as he takes his just reward in the marketplace.

(2) The DMCA has an exception for reverse engineering. DeCSS clearly allows interoperability and meets this exception.

(3) The law explicitly says that "fair use" is not affected see 1201(c)(1). Under the Sony Betamax decision, DeCSS would qualify.

(4) DeCSS, as a computer program, is protected expression under the statue. Computer programs are 'literary works' under well established copyright laws. The DMCA explicitly exempts speech from it's scope in 1201(c)(4). Further it explicitly bans prior restraints from judicial authority in 1203(b)(1)

(5) The tying of DVD copyrights to "licenced" players violates antitrust laws and constitutes "misuse of copyright", both of which are affirmative defenses in copyright cases.

All of these are based purely on statutory arguements and existing caselaw.

That explains it

[Rupert]

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.

Motion for Kaplan's recusal denied...

[isaac]

I was out at the protest in front of the court earlier (500 Pearl Street in Manhattan, if yer in NYC, it's still going on). Garbus requested that Judge Kaplan recuse himself based on a conflict of interest. Kaplan denied this request at the very beginning of the day. Declan McCullagh already noted this in his Wired article of several hours ago.

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

Why did this take so long?

[rgmoore]

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?