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

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.

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.

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.

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: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.

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