Maryland Task Force Proposes Special Tech Courts

rkent writes: "In this NYTimes article, Microsoft makes a good point, the wrong way. They argue that their case was 'so technical and esoteric' that Judge Jackson couldn't understand it. However, the Business and Technology Division Task Force in Maryland is examining the viability of setting up special courts for tech cases. Which may or may not have helped Microsoft. But would it have helped 2600? And future Internet 'pirates?'"

Setting up special 'techno-courts' has the glossy sheen of futurism and hipness, but if the proposed high-tech courts are specialized by the content of their trials, what's to stop them from becoming self-perpetuating, invasive, and self-aggrandizing bodies within their particular fields of purported expertise, and using that expertise as a means of blocking criticism? Would such special courts be an improvement over better educating the existing judiciary?

Comments

Re:What an incredibly bad idea

[MillMan]

After all, we've seen on /. a thousand times how disillusioned the technically skilled population is with many, many aspects of the law. Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests. Are these the people you want as judges in cases like 2600?

You mean people who understand the needs of the common person and not just those with money? Sounds good to me. But your scenario would never happen, they aren't go to hire the average slashdot reader to be a judge. These people will have to have law degrees and experience, just like any other judge.

It also smacks of elitism that certain cases should only be allowed to be judged by an elite cabal of "tech judges". Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

Because there is no such thing as being impartial. If there was, supreme court judges would all rule in the same direction. Your biases and experiences affect how you think. On top of that, the complete ingnorance displayed by some judges in this area *is* a problem. Having to think in terms of analogies isn't good, as it seemed judge Jackson did.

Sorry, but this wouldn't solve any problems - no judge could keep up with all of the advances in the various fields of computing unless they worked in them. And if they did, you could never be sure that they were unbiased. I say we keep this elitism out of the judicial system, and stick with what we know works.

I think it might help a bit, but I worry about something different than you: that the judges chosen would be "corporate whores" worse than any that are already out there. The effectiveness of a seperate court like this depends completely on the judges chosen.

Tech companies tend to think that it's ok to get around regulations and often they do. This is because tech companies bring in high paying jobs to the community, and can get away with more than the average company. I'm afriad that in this case microsoft is just saying something like "we want a judge who will side with us, because we know we're right because we are". There is no reason to believe other tech companies would be different.

Re:Utterly superfluous

[Steve B]

Oh yeh, and for all the people determined to slander Judge Kaplan -- give me just one example of a technical mistake made in his judgement.

"CSS, or Content Scramble System, is an access control and copy prevention [sic] system"

Of course, CSS no more prevents a DVD from being copied than Pig Latin prevents a text from being photocopied.

My fact-checking fee is $30/hour. You owe me fifty cents (and if you hadn't been too lazy to provide a link to the decision, you'd only owe me a quarter).
/.

Re:Two quick comments:

[Zathrus]

3) Very very commonly, cases involving sciences use an expert witness, generally a scientist or engineer that is unrelated to the case but an expert in the field. I would think a similar system would work for computer experts, however, there is something of an informal fraternity of geekdome throughout this area, so that finding a computer expert that was imparital to the deCSS case would probably be very difficult. But I don't see why this can't be attempted at least.

Ah, but that already occurs. There were several expert witnesses in the Microsoft case. Some testified for MSFT, some against.

In any case where the plaintiff or defendant feels the court (judge and/or jury) may need knowledge above and beyond what one might expect they'll call in expert witnesses. And if one side does it the other side will call an expert witness to contradict them.

Expert witnesses are not impartial. They are hired by the plaintiff or defendant to testify. Not all experts in any field have the same opinion -- I'm sure you could find many who felt the DeCSS verdict was correct. And to be cynical about it, if you wave around enough money, fame, or influence you'll eventually find an "expert" who is willing to testify whatever way you want them to. Just go look at the OJ Simpson case as an example...
--

Very good idea

[BlueDraco]

Even though it comes from a company that many people here really don't like (don't knock it because of that), any move that would put someone who really knows what they are talking about "tech" wise would be a good thing(tm) in my mind. However it remains to be seen if the US. gov. can do it right.

Re:What an incredibly bad idea

[krlynch]

Indeed, but currently most judges have no knowledge of the various fields of computing whatsoever. How can you expect somebody who doesn't know anything about technology to effect an honest trial in a technology-based case?

Playing devil's advocate here for a second, I would expect judge's to seek out help, just as Judge Jackson did by appointing a Special Master (did I get that title right?), or listen to the experts (in the legal sense) that both sides bring to a trial (that is, after all, why the "expert" is enshrined in law and given special leeway in the court to inject their opinion into a legal proceeding). If you read legal opinions from judges presiding over trials with experts, you generally see them address the comments and opinions of the experts, and why they accept or reject those opinions.

Secondly, even a technology aware judge is not going to have the requisite knowledge in all areas of "technology". I would not want to see an expert in database technology designing tires (to pick a random, in the news kind of point), for example, because they require totally separate sets of understanding. Should the same extend to these technology judges, or would you consider all technology cases equally under the jurisdiction of the technology courts?

Besides, practice of the law is not so much different in the skills needed than is practice of most technical professions: the ability to absorb large quantities of data, analyse those data logically within a certain prescribed framework, and render decisions on that data in view of past experience and current data. Just because the prescribed framework is a set of laws and precedents and not an instruction set and memory architecture doesn't, to me anyway, seem to make much difference in the end.

Re:It is not needed in the MS antitrust case

[Happy Monkey]

Would that put all of the "smartest" judges in one court and the rest in another.

That's an interesting idea. We'd have lawyers for each side arguing over whether to take the case to Smart Court or Not So Smart Court. And frivolous lawsuits could be weeded out by judging against those who thied to get their case tried in Not So Smart Court.
___

Are they joking?

[SubtleNuance]

Absolutely a horrible idea. Do you want judges (any 'one' person) who presides over _MANY_ cases to be able to 'influence' the overall direction of MANY cases? Sounds like a system that will be even MORE abused than it is presently. Judges can become part of the status quo and are as much a part of the 'establishment' as anyone. That system is terribly easy to corrupt. What is necessary INSTEAD is a system where a JURY of competent Tech people preside over these cases. They are transient (cannot change the general nature or direction of Case Law) and are MUCH less corruptible (can be sequestered). They preside on the facts at hand. Once. Have little chance of being a homogenous group of any type, and can be decided in the usual Jury Selection System.

Lets NOT encourage further entrenchment of this un-holy domination of Western Civilization that Lawyers have over everything. Let them organize the courts, nothing more. But lets make CITIZENS make the rulings. What a horrible idea.

Would you Yankees stand up for yourselves? Your being overrun by corporatists and lawyers(politicians), and their using your military to overrun the rest of us. Do yourselves a favour:

Re:a fly on the wall...

[CodeShark]

"I'd love to be a fly on the wall while the interns are sorting all that material.... "

You and me both. With the hopes that the interns are clued in, and that the "ornery bunch" uses it's oppportunity to whap Mister(s) Bill and Ballmer up side the head with a definition of the law which they can undertand, AKA "break it up, boys..."

What Happened to the Jury of Your Peers?

[ewhac]

It seems to me that the best way to mitigate these idiot court rulings is to ensure that the jurors selected have a clue about tech issues. I daresay that a jury packed with technically literate engineers would have a much easier time distinguishing the truth from the bombast in, for example, patent cases.

In any case, I'd feel much better with an intelligent, educated jury sitting than a bunch of randoms who were, "too stupid to get out of jury duty" (an aphorism I find rather shortsighted and offensive).

Schwab

Re:Utterly superfluous

[aufait]

What we have here is a prime example of some depressed hayseed jurisdiction trying to become an "e-commerce" centre to provide a substitute for dope growing, by futzing about with legal principles.

Nothing like starting a message with flamebait!

Home truth time, boys: technical questions are not difficult.

I agree

Read Kaplan's summary of the technical issues in the DeCSS trial (I said read it, not skim a slashdot article about it).

I read the entire transcripts, the entire opinion, and the order. But, it is a bad example to prove your point since the case turns more on legal issues like copyright law than technical issues. The technical issues are not very complicated.

A trained legal brain can master any subject in its salient details.

And a trained technical brain can master any subject in its salient details. The law isn't any more complicated than technical issues.

Two Examples:

The Open DVD shows that non-lawyers can grasp the intricacies of legal concepts of copyright law.

Second, is the fact that I was involved in a pro se case. That case went to the Maryland Court of Special Appeals (we won the appeal) and also had a motion ruled in our favor that depended on the whether collateral estoppal applied to the case. The opposing lawyer was from Maryland's Attorney General Office.

Lawyers are the highest paid employees in the country

Money == Brains ???

Of course, the fact that your profession has a government enforced monopoly doesn't hurt your income.

Justice must be seen to be done

[SimonK]

I do believe this is a bad idea. Its a principle of common law, enshrined in the US constitution, that justice must not only be done but be seen to be done. Having a separate system of courts that deal in things that are supposedly too hard for ordinary (read: stupid) people to understand is not going to help that goal. The implicit statement is that only supersmart people who speak techiegook are competent to judge these cases, and only similarly rarefied souls are competent to testify in them.

The likely consequence would be that ordinary folk would be reluctant to bring cases to these courts for fear of being made to look foolish. You'd end up with a hoard of especially expensive technolawyers, mostly in the pay of big corporations, who'd be the only people who could afford them. This would be a recipe for more and more pro-corporate decisions.

I know there's a certain attraction to this idea. The concept of a discrete court system that "spoke our language" seems attractive, but I don't think it would be like that at all. You'd end up with great tottering piles of incomprehensible precedent couched in a combination of techspeak and lawyerese that would effectively make the whole thing a disaster for anyone but the lawyers working it.

I'm not saying the courts don't need technical advice, and I'm not saying the existing system, where different technical witnesses slag each other off in court works well, but the answer is not to set up a new court system with even higher barriers to entry than the existing one. I quite liked the way the "silicon implants cause cancer" case was handled, where the judge appointed an expert panel that questioned the two sides expert witnesses and then gave an evaluation of the evidence in terms "the court" (ie. judges and jurors) could understand.

Re:Justice must be seen to be done

[Chakotay]

justice must not only be done but be seen to be done.

... things that are supposedly too hard for ordinary (read: stupid) people to understand ... that only supersmart people who speak techiegook ... are competent to testify in them.

Ah, so every American speaks fluent Legalese now?

How many people have read and actually understood Judge Jackson's Findings of Fact in the Microsoft Monopoly case, for example? I didn't understand one bit of it - not because I'm not technically inclined, quite the contrary, but because I, like so many other people, don't fully understand legalese.

I quite liked the way the "silicon implants cause cancer" case was handled, where the judge appointed an expert panel that questioned the two sides expert witnesses and then gave an evaluation of the evidence in terms "the court" (ie. judges and jurors) could understand.

That would, imho, be the best solution: to assign a board of impartial technically savvy people to advise the existing court, maybe permanent, maybe on a case-to-case basis, instead of creating a separate court.

)O(
Never underestimate the power of stupidity

Re:Justice must be seen to be done

[CodeShark]

I was just getting ready to make a second post (link here if you're interested), but you stated the issues much better than I would have.

With the obligatory and hated "IANAL" ( I am not a lawyer ), aside, if you're still reading SimonK, I hope you will explain a little bit more about how the expert panel worked. (see mu jury story behind my request for further comment a bit later in this post.)

I also wonder if an expert panel in technically oriented cases (such as DeCSS, 2600, etc.) might force a biased judge to act more rationally and above board in his decisions.

Now then, if I might comment just a little bit on one of your statements, highlighted here:

"The implicit statement is that only supersmart people who speak techiegook are competent to judge these cases, and only similarly rarefied souls are competent to testify in them."

IMHO, the only thing that keeps the entire judiciary system from being a bought and paid for arm of the corporation and the state (which is what Congress appears to be becoming) is that one sentence in the constitution which guarantees the right to a jury trial. My jury experience(s) tell me that what you named as a likely consequence strikes me as how things already are, at least here in the U.S.: "You'd end up with a hoard of especially expensive technolawyers, mostly in the pay of big corporations, who'd be the only people who could afford them. This would be a recipe for more and more pro-corporate decisions." Secondarily -- considering that almost all judges ARE lawyers, we already have "great tottering piles of incomprehensible precedent couched in a combination of techspeak and lawyerese."

My jury story: As a juror, on more than one occasion, I've gotten really mad because I could tell that neither the plaintiff's attorney nor the defense attorney were really interested inthe truth, which is what a verdict is supposed to expose -- they were interested in spinning a story which would let their particular side "win". [Side note: A couple of the other jurors thought I should be tossed out of the jury room, because I kept naming facts which I knew from my college training, but neither side had presented. Most of the other folks as or more knowledgeable than me in the particular area in the prospective jury pool got excluded by the plaintiff's attorney, by the way.] Ultimately, it was a combination of those facts which exposed enough of the truth to allow us all to agree on a fair settlement for the plaintiff BTW, but at a reasonable, even wise level not the exhorbitant, extortive amounts the lawyers were going after. The amazing thing is that when I talked to the defense attorney after the case concluded, he said the jury had made a fairer decision than he expected.

My point is being, unless the truth is evident, the whole judicial process falters, and like you, I am suspicious that a "techno-court" would subtract, rather than add, from the common person's ability to get a fair decision based on the truth of what is coming before the court in their particular cases.

Re:Justice must be seen to be done

[alleria]

I agree with most of what you've said, but I think the intent is to allow the cases to be judged by people who are /more/ "our peers."

Granted, this could likely be done by a judge appointing a panel, but this doesn't always happen, and isn't required to happen.

Re:Justice must be seen to be done

[SimonK]

Regarding the breast implant thing, my recollection of the case is that there was a long running media "scandal" where various claims were made that the silicone used in implant was dangerous to health, especially if the implants rupture. Several lawsuits were introduced in various US, Canadian and British courts against the manufacturers, including Dow Corning, which was bankrupted by the affair, and had previously had an excellent reputation for ethical behaviour.

There actually seem to have been several efforts to use independent experts to resolve the case. The best reference appears to be this articel. There's so radical change to the usual common law way of doing things here, the judges just used independent experts to try to resolve conflicting claims and work out whose evidence to throw out.

I doubt this will really help with biased judges, or lawyers who fail to introduce relevant evidence (as seems to have happended in your jury story). Unfortunately this is the nature of our system: the lawyers decide what goes before the court and the judge decides whether its admissable. The Roman law "inquisitorial" jurisdictions (like France) have an advantage in that the magistrates can order new investigations and gather evidence themselves if they think it necessary. Of course, this still doesn't help if they're prejudiced, or can't see the need for new evidence.

Regarding your other comments: yeah, I agree the current system fails in the goal of transparency, and we already seem to be headed towards an elite cabal of technolawyers. I think we broadly agree that whats needed is some mechanism to ensure trials are not shrouded in gobbledegook of any kind, so the jury, and the watching public, can reach their conclusions.

why just technology courts

[martin]

There's other areas that are just as specific.
Heck financial law and bearking it is a complete nightmare to follow. There have been many many tax cases in the UK that have literally cost millions and resulted in no-conviction because the details are so complex and proofing wrong doing is almost impossible.

If they are going to go for tech courts then do the job properly and have others for medical, financial and other areas.

The problem

[DBLO_P]

with law and tech is that they are both too large for one person to handle the total extent of. What I mean is, you can be a great judge or you can be a great techy. Understanding the scope of technology is going to take a shift in the general knowledge of the entire populus. If the general guy doesn't know that not being able to play DVDs under Linux is a huge precident being sent, how can we expect the average judge to know any better. The judge in this case knew that he was dealing with something large but didn't really know how to handle it. Nothing like this has been done before. If we develope a group of techno-judges why would they be able to handle the implications any better. We need to keep the judges doing the law and the geeks doing what ever it is we do and have some kind of technical expert. After all judges don't know DNA testing why should we expect them to uderstand packet switched networks.

Re:Two quick comments:

[Shadow99_1]

I'd rather skip 'expert witnesses' & instead ahve an advisor for the judge or jury who is an expert on areas they may not know anything about...

Re:Utterly superfluous

[SimonK]

He's not a lawyer. He's just a ****ing troll. Don't rise to it.

Re:Utterly superfluous

[streetlawyer]

CSS is, in fact, a copy prevention system. CSS consists of two parts; the encryption system for the DVD data, and the session keys used to identify the DVD player. A bit-for-bit copy of a CSS-scrambled DVD is useless, as it is impossible to copy the session key tracks without specialised equipment. All this evidence is available in the depositions made to the trial.

My fees are somewhat higher; you owe me $2,000 (sadly, my timesheet does not allow me to bill for increments of less than 1 hour. If you have any further legal questions, please feel free to ask them for the next 58 minutes.

How it will turn out...

[Fruny]

You will get judges who know COBOL.

We need more informed judges/lawyers, not courts

[bleh-of-the-huns]

I don't see the need for a whole new court system, the existing one would work just fine if the judges involved where less biased, and better informed. It does not take a computer genuis to read over a technical outline about a subject, only the ability to follow and understand an unbiased brief.

Also getting rid of the god damn lawyers who prob people into all these damn useless law suits (King comes to mind), and a little more backround screening of the judges involved in cases (for example I believe Kaplin has presided over a/few previous cases and sided with the corperate industry).

Jason ... my 2c worth

a better idea

[10am-bedtime]

ok, if we want to turn to technology, why not write the Legal Expert AI? this (largish) bit of code needs to analyze case histories and recognize patterns well enough to be able to synthesize prescriptive remedies. if good enough, we could elect it president...

Tech Lawyer?

[xianzombie]

Thats a job I could handle. For gods sakes, if i wanted to, i can write articles that would make Katz cringe...and maybe even make a vaild point or two in the process.

Re:Tech Lawyer?

[King of the World]

Oooh oooh, me too.

Although really, my entire strategy would consist of yelling at people on the stand "may I remind you you're under oath".

They look so guilty when you do that.

I don't see what the big deal is. Traffic court, tech court. Blah. Don't american's have judge wapners animal court?

Re:Tech Lawyer?

[xianzombie]

Don't american's have judge wapners animal court?

I'm not sure, I usually try to avoid watching tv because of crap like that, but i think we do (as scary as that is).

Seriously though, I love technology, but I'm not a graphic artist, and definatly not a programmer, so aside from doing hardware maintance, theres not a lot I could really do as a job. However with all the IP lawsuits (not tech, but still something I would like to see changed) and the tech lawsuits themselves, I really think its something I could get into

Now if only I could handle speaking in front of people a bit better so I wasn't just doing the paperwork for a client......

Mr. Gates, shut the hell up, your out of order!

from the too good to be true dept.

[Gehenna_Gehenna]

Isn't that a Tom Clancy book? And didn't Tom himself say that the only difference between reality and fiction is that fiction had too make sense? This is too good an idea. It will never happen.

Re:Utterly superfluous

[Steve B]

The reasonableness or otherwise of the CSS copy protection [sic] scheme is not relevant to the question of whether it is a copy protection scheme; and in any case, the issue has been decided in court

And so the circle is completed: the courts system is correct in calling the CSS access control system a copy protection scheme because the courts have ruled to that effect.
/.

What an incredibly bad idea

[flatpack]

After all, we've seen on /. a thousand times how disillusioned the technically skilled population is with many, many aspects of the law. Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests. Are these the people you want as judges in cases like 2600?

It also smacks of elitism that certain cases should only be allowed to be judged by an elite cabal of "tech judges". Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

Sorry, but this wouldn't solve any problems - no judge could keep up with all of the advances in the various fields of computing unless they worked in them. And if they did, you could never be sure that they were unbiased. I say we keep this elitism out of the judicial system, and stick with what we know works.

Re:What an incredibly bad idea

[Nick Ives]

Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests

Peaceful civil disobediance is a perfectly legitimate form of protest. "Flouting the law", as you put it, is just an extended version of peaceful civil disobediance. It tends to work too, I mean, most police officers tend to have a hard time arresting you if your sat there, not doing anything to harm anyone and breaking the law. From there on, reform is almost inevitable...

Nick

Re:What an incredibly bad idea

[Chakotay]

Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

That indeed is very true... You can hardly expect a tech judge to be impartial to the Microsoft trial. They'll either love or hate Microsoft, which will affect their decision.

no judge could keep up with all of the advances in the various fields of computing unless they worked in them.

Indeed, but currently most judges have no knowledge of the various fields of computing whatsoever. How can you expect somebody who doesn't know anything about technology to effect an honest trial in a technology-based case? How can you expect a mostly a-technical jury (because, face it, most people are) to make an impartial and well informed decision about a technical case?

I don't think there's a need for a special technical court. A team of technically knowledgeable advisors to courts would be a much better idea, imho...

)O(
Never underestimate the power of stupidity

Re:What an incredibly bad idea

[Kaa]

Are these the people you want as judges in cases like 2600?

I am fairly sure that you'll need a law degree and a substantial amount of actual experience of practicing law in order to become a judge, "tech" or no. So, rest easy -- Katz is not going to sit in judgement on you.

Why should a case which involves technical concepts merit its own special type of judge,

Because in order for the trial to be fair and honest (I am trying to keep a straight face here), or at least half-way decent, the judge has to understand the issues involved. Look at Kevin Mitnick's case. The judge was a total asshole and, as I've heard -- although this looks like an urban legend -- refused to let him use a telephone in his cell for the fear that he would whistle modem tones into it, connect to some computer system and blow up USA or something.

In any case, there is precedent: tax cases are decided by special tax court for precisely the same reasons. Tax issues are so "technical" that normal judges are expected to be unqualified to judge on them.

no judge could keep up with all of the advances in the various fields of computing unless they worked in them.

They don't have to. You are confusing judges and patent assessors :-)

A judge that knows, say, the difference between a compiler and a linker would be a great advance over what we have now.

And if they did, you could never be sure that they were unbiased.

Biased in whose favor? And why knowing "tech" stuff should make them different, bias-wise, from "normal" judges?

and stick with what we know works.

Works? And, pray tell, what makes you think that the justice system in the USA now works? Oh, sure, the cases move through the courts, but are you saying that the system we have now is the best of all possible ones?

Kaa

Re:What an incredibly bad idea

[Tet]

I say we keep this elitism out of the judicial system, and stick with what we know works.

The problem is that not only does the law not work, it never has done. Law and justice are very different things. The law is just an approximation to justice, that has been, for the most part, close enough that we can pretend it works. As techonology is progressing faster than law, though, that approximation is becoming less and less accurate. Whether separate tech courts are a solution to this problem is debatable, and we may indeed be better off sticking with the current system. But that system most definitely does not work. It's just that it may be less broken than the alternatives.

Re:What an incredibly bad idea

[(trb001)]

Actually, I have to agree with you on this one. It's not that there should be a special group of people that judge technical cases, but rather we should make the general public a little more aware to the conditions behind technology.

Having a seperate panel for tech cases would be like having a seperate panel for black people and white people, Indian and European. Not quite fair to either group.

--trb

Re:What an incredibly bad idea

[Dr. X]

I say we keep this elitism out of the judicial system, and stick with what we know works. The judicial system works???

Re:Utterly superfluous

[Steve B]

It is not possible to "Physically copy" the key tracks without licensing a special piece of equipment

It is not possible to copy any of the tracks without a special piece of equipment.
/.

hmm

[acehole]

who gets to be the judge?

how about linus?

If i was gonna get 40 lashes in a public square for using napster i'd rather have the ruling made by someone i can respect ;)

Re:hmm

[acehole]

and no i dont have a fetish about linus holding a whip ;p

Re:hmm

[spongman]

Yeah, great. All we need is some crazed genius in the chair holding the hammer deciding who can and can not get their contributions into the record.

Oh... hang on...

Place your right hand on the manual and repeat after me: "I swear by the GNU Copyleft License..."

Why not DNA courts?

[lythander]

We've decided that the extremely technical aspect of DNA evidence is comprehensible by the general public, why not other tech?

Elitism. High-tech companies think that they'll get a fairer shake since the tech courts will be full of pro-tech people.

Clueless.

[mrsam]

From reading the transcripts of the DeCSS and Napster cases, I really think the real problem is the judges. I'm not sure how a "tech court" is supposed to help when you have a dingbat like Marilyn Pattel before the bench.

I have no doubt that if the DeCSS or the Napster case had a different judge behind the bench, the outcome would've been different. It's a sad state of the 'merkin legal system where the outcome often has absolutely nothing to do with the facts of the cases, but it more has to do with which judge sits behind the bench.

---

Re:Clueless.

[Nullsmack]

who is clueless here?
Napster's servers (notice whose servers those are.. not the ones running on users computers..) did not deal in pirated material! All they did was store and forward data on who's online and searchs. AFAIK, they didn't even store the list of contents of stuff that you were sharing, they simply forwarded the search command to you and then each individual server replied directly to the person who requested it.
Not only is there no way they could know what was being shared, there is no easy way they could selectivly find, single out, and block connections from people who are serving specific material. Even if you had a bunch of metallica mp3's being shared, who's to say that those aren't just noise with a metallica name?
Of course, since linking is now illegal(and free speech is basically not gauranteed online), they might as well make it illegal for Napster to do the same in their own proprietary way.
Another example of corps using gov power to shut down a small business instead of actually trying to go after the users who are exploiting it. (easy solution to complex problem means more money for RIAA, nevermind ethics)
-since when did 'MTV' stand for Real World Television instead of MUSIC television?

i want to be such judge

[hany]

i want to be such tech-judge.

i'm expert in every IT field, i have little knowledge about law, i'm (maybe) pretty average MS hater (as almost everybody who saw PC at least once in his life) and linux supporter (as almost everyone who saw Linux at least once in his life) so i'm certain i will rule reasonably and fair in every case - especialy in "MS vs. DOJ" case.

:>

It'd be bad if it weren't so ineffectual

[Crash Culligan]

Two things to consider:

1. IT'S JUST ONE STATE
And not even a state known for widespread technological development. California has a strong tech industry. Seattle has Redmond. New York is developing its own 'Silicon Alley.'

What is Maryland known for? Seafood and speeding tickets!! And while Maryland has a little tech industry, it's not California, or Seattle, or New York. Or better/worse yet, the Federal Government.

This is why it's ineffectual. And probably a good thing too because...

2. IT'S THE WRONG SOLUTION FOR THE PROBLEM

Consider the role of the courts in government: the legislative branch writes the laws, the executive branch ratifies them and sets policy, and the judicial branch only interprets and enforces them where necessary (and allegedly strikes down the bad ones).

Ladies, gentlemen, and /.ers, the problem is not just in the Judiciary. Even Judge Patel admitted that the DMCA has created a monumental legal snafu. A snafu which, I should point out, began in the Legislative branch where the laws were first written.

Creating a technically knowledgeable division in the Judicial branch is like writing an improved script to interpret the output of a program written which implements outdated (and sometimes downright wrong) algorithms.

And even if this gets to the Federal level, remember that the judges are appointed by the Executive branch, with the approval of the Legislative branch. They have always had the ability to stack the Judiciary with whatever judges they want, and have done so for the past few decades.

There is a hope in here, that a sufficiently technically knowledgeable judiciary would declare more laws unconstitutional, but there is an equally compelling dread that a panel of judges sufficiently friendly to the Congress wouldn't bother. After all, the Bill of Rights is already a shadow of its former self, if not an impediment to better paid-for government and corporate rights.

Re:It'd be bad if it weren't so ineffectual

[Ho-Lee-Cow!]

What is Maryland known for? Seafood and speeding tickets!!

And ex-governors doing jail time.... I love living in MD, honest!

Ladies, gentlemen, and /.ers, the problem is not just in the Judiciary. Even Judge Patel admitted that the DMCA has created a monumental legal snafu. A snafu which, I should point out, began in the Legislative branch where the laws were first written.

DMCA is policy laundering from no one else but Bill and Al. They failed to even get this piece of crap considered--until they ran overseas and got a treaty that we then had to enforce. This whole business is about Bill Clinton and Al Gore trying to enslave the world at the behest of their money weilding supporters...the corporations.

And even if this gets to the Federal level, remember that the judges are appointed by the Executive branch, with the approval of the Legislative branch. They have always had the ability to stack the Judiciary with whatever judges they want, and have done so for the past few decades.

Kaplan is a Clinton appointee and about as corrupt. Can you imagine what a Gore appointee would be like? They'd all have to think that Al invented the internet to get on the bench.

Please also note the 7th Amendment, which says you have a right to trial by jury in cases where more than 20 bucks is involved. Juries, on the whole, are out of the process at the federal level because they can't be bought and paid for with MPAA and RIAA money nearly as easily.

Re:Utterly superfluous

[streetlawyer]

do you take monopoly money?

I have on occasion worked for Intel; what on earth does that have to do with anything?

Hmph

[Urmane]

"They argue that their case was 'so technical and esoteric' that Judge Jackson couldn't understand" ... that they "did nothing illegal"? Pardon me, but does anybody in The Real World see that MS is just a bunch of whiners? I mean, really, I know the rule about "deny, deny, deny", but I think there's a corollary that states "try not to sound like an eighth grader while doing it".

Personally, I'm appalled at the thought of setting up "special courts" for anything. I'm also appalled at the thought that this might be a direct result of the govt's challenge of MS. I literally would not expect the citizenry to be able to tell the difference between the Tech Court and MS Justice 1.0, and I shudder to think of what precedents might be set by such a court. Come on, think, people; why do you think the courts are set up the way they are? Yes, there needs to be a solution to the problem of judges and lawyers who do not understand high-tech, but this ain't it.

--

Re:Hmph

[dattaway]

I had a speeding ticket and argued it was so technical and esoteric that the judge couldn't understand. He told me to get the hell out of his courtroom.

They've got it the wrong way around.

[jammer]

The problem is that the people we have in office now simply do not grasp technology, or grasp it and fear it. The solution is not to create special courts full of cluefulls, it is to replace the dying dinosaurs who are sucking up our tax dollars right now with people who are actually relevant to the world around them.

Special Tech Courts?

[alizard]

Too many cases regarding technology, computing, and the Net are being resolved by judges who literally have never seen a C: prompt or a Mac Finder screen.

However, the MS antitrust case isn't one of them. It appears that Judge Jackson did get the issues at stake and ran through them from A to Z in his court decision.

How many of you whining about that EVIL, NASTY judge DARING to "stop MicroShit from innovating" have bothered to read it?

Try here for excerpts and the URL of the decision itself.

If a special technical issues court is put together, Judge Jackson and the Federal judges who wrote the anti-CDA decision should be on it.

Isn't Maryland UCITA?

[HiThere]

Isn't Maryland one of the UCITA states? If so don't know that I would trust any decision that they came to. They would, in my mind, be presumed conflicted until proven otherwise. OTOH, the absurd length of that stupid law might make it mandatory to have a specialist to have a fighting chance of figuring out what it meant.

-This could improve the quality of lobbyists

[PsiPsiStar]

Kaner and Pels, in their crusade against UCITA, combined with some articles from Infoworld's 'gripe line' describe how most political consutltants on software matters also work for the industry in their off hours. Just a few months back, one of the primary authors of UCITA was shown to have worked for microsoft. It was judged that it would be unreasonable to expect tech lawyers not to work for companies since doing so would prevent them from earning a living.

I admit that this idea is idealistic, since our adversarial justice system would require that a group of easily accessible lawyers remain on the public payroll to represent the state in cases against corporations, America's governing body would have a ready pool of skilled consultants who would be free of the conflicts of interest that private industry might impose.

Of course, unless this idea is somehow institutionalized I doubt that it would be used.

Re:-This could improve the quality of lobbyists

[PsiPsiStar]

A correction to the above. It should read "it would be unreasonable to expect tech lawyers who work as governement consultants not to work for companies in their off hours"

It's very much like it...

[Perianwyr Stormcrow]

to the point that those who consider themselves threatened would want to drop the M.D. Device on where it lives, even though the people there already have a solution for the problem.

parallels are a bitch.

--Perianwyr Stormcrow

Re:Strange

[kingsquab]

I find it rather strange that Microsoft should be backing this, considering that their case was really rather non-technical. It was more about business practices than actual technical minutæ.

That's exactly why MS would be backing this. They were hosed from a business practices point of view, as the verdict ultimately showed, so they muddy the water by claiming that the "real" issues are too difficult for a layman to understand.

Re:Utterly superfluous

[(void*)]

That special piece of equipment that you speak of is just a DVD player without the funny protection key electronics.

It is a physically simpler device. It is not inherent more special than the licensed DVD player itself.

Re:You're making kind of a bad comparison

[david duncan scott]

But they're all equally arbitrary divisions. It's not like traffic laws are based on English common law, rent codes on Napoleonic, and civil cases on the UCMJ. They're simply specialties within the law, and I'm sure in most small towns they're handled by the same people in the same room.

I'm sure that by now there lawyers who specialize in "technology" issues, by which I imagine they would mean computers, telcomm, and electronics, just as there are malpractice attorneys. Certainly many law enforcement agencies have felt it necessary to spin off seperate units to handle these cases. It therefore might not laughable to allow judges to specialize as well.

It doesn't mean that each judge needs a CS degree, any more than the judges in Orphans Court need to be orphans. It does mean that they might develop a working knowledge of the field.

There's a post somewhere in this page (I think up from here) purporting to be from an attorney, commenting that tech issues are simple compared to law, and in some ways he's right (although I have to ask -- anybody out there doing IT for a law firm? Do your lawyers generally know where the power button is?). But that doesn't mean that any given attorney knows what issues to study, and you can't bone up on an issue of which you are unaware.What's your favorite intelligent-and-well-meaning-but-ignorant-user story?

Put it this way: If you walked into traffic court and found that the judge had never driven a car, might that bother you? Might it make it a little hard to explain what you meant about the blind spot of a truck? What if he didn't realize that left turns are different from right turns because of oncoming traffic? Are you certain that you would think to explain it to him?

Specialist Judges...

[umbra.lux]

...how about judges that specialize in the Law?!
Next thing you know, we'll need to set up specialized courts for Medical cases, another set for Automobile cases, another for Property...
Where does it end? Courts have always relied on 'expert' testimony...do we gain anything by changing that now?

Bad, but the state courts are bad

[FallLine]

Well I agree that having special "tech" judges is mostly unnecessary, and probably even unwise. I don't believe a "technical" judge for one is really going to be able to educate himself sufficiently in the state of every art. I think all it really requires is a fairly intelligent and unbiased judge that is willing to listen. Even though Jackson conceded he was not an expect by any means, I think Jackson's assesment of the MS case was right on the money.

Unfortunately, however, most states have really horrible courts when it comes to issues like business law. It's so bad, in fact, that many corporations have chosen to incorporate in Delaware [widely regarded as having the best], for issues beyond just tax laws. Delaware, unlike most, has adopted a certain expediency and fairness and predictability. Delaware Supreme Court had done an excellent job of monitoring the lower courts, and effectively regulating them to keep abusive lawsuits out.

We don't need "special" tech judges [if anything, business law is more demanding], we just need decent and competent judges in the state courts that are well regulated. To this end promoting judges based on merit, rather than requiring them to run for election, would make for a better system.

No, the real solution would be...

[zpengo]

...a new legal system, not new courts to interpret the woefully inadequate old one.

Good Idea

[thunder-in-pants]

I see many people have come out saying the Judges involved in these cases just need to be more informed. Well, it doesn't work like that. Judges aren't going to hold the case until they've taken a few classes on the subject and met with every expert they can get ahold of. So, as in many issues of speciality -- such as financial law, family law, and criminal law -- special courts are set up where the judges in these courts have experience and knowledge pertaining to the speciality.

Now, while I support this move, and recognize it is just in one state at the moment, these judges can only administer the law. If a law states anyone wearing blue must be hung upside down for four hours and the judge hears a case that provide convincing evidence someone was wearing blue...the judge has to administer that law, no matter how stupid it is. Thus we are back to legislaters. This is a good thing as we have a direct way of communicating with congressional reps, unlike judges that rarely can be successfully lobbied.

It is important that you write and call your legislator and discuss your concerns over the tech laws that are being passed. It is even more effective if you state you work in the field or are in some way significantly connected to the industry. Offer to meet with him/her when she is in town to discuss upcoming bills. The /. community is filled with very bright, articulate people who have a good chance of at least enlightening a congressional rep to the downsides of certain bills.

The 'Do this or I won't vote for you' tactic rarely works because the rep will think you will make this demand of every issue that comes up and thus won't really be able to get your vote anyway. But the 'I want to work with you' approach goes a very long way.

In conclusion, yes, let's have Tech Courts at least until these issues get more mainstream and more judges have experience at looking at these sorts of cases. Don't expect the courts to rule any differently though because at the foundation, the laws governing the Tech Sector are flawed and only getting these laws change will fix these sad court decisions.

Can Medical lawsuits be any less complicated?

[imagineer_bob]

What about lawsuits about automobile or airlines. Or a bridge that failed? Or breast implants? Or manufacturing illicit drugs.

Many cases are complicated. It think it's pompous to presume that [computer] technolgy cases are more complicated than any others.

--- Speaking only for myself,

2600 case

[QuantumG]

Anyone who read the transcripts of the 2600 case would agree that this judge did "get it". During the case the people in the court room even commented on the judge's computer efficiency. The judge understood most of the expert witness testimony before the prosecution did. A number of times the prosecution started asking questions to clarify to the judge what was said by the expert and the judge shut them down and just asked the expert if he had understood him right, and he had! I don't think we give judges enough credit.

Re:Just a point about your Jury story

[CodeShark]

Good point, which I have thought about many times since then, but according to a lawyer who I asked about it later, I did the right thing.

An example: if a doctor were on a jury, and the "facts" presented by the prosecution / plaintiff's attorney could not in reality be correct, and the defense didn't rebut the specific so-called facts, should the rest of the jury be kept in the dark about why the "presentation" isn't truthful? This is the exact reason that attorney's usually seek to qualify or disqualify jurors that they think will aid or hinder their side of the presentation when the jury goes to deliberate. Off topic perhaps but related, alot of legal pundits point to the choices made by the prosecuting attorneys in selecting the respective juries as one of the key reasons that O.J. Simpson walked out of his criminal trial a free man, but got nailed to the wall in the civil trial.

One final point. Lawyer's aren't supposed to be able to rebut/object/etc. to what goes on in the jury room. The discussion in the jury room is unmonitored, unfiltered, and unrecorded, and therefore (at least in theory), more able to come to an objective and fair decision about "the truth", leading to a legal decision based on that truth, AKA the verdict.

Re:Utterly superfluous

[nihilogos]

Erm, the session key tracks are represented by bits. You can make bitwise copies of the session tracks.

[OT] Difference between criminal and civil

[Max Hyre]

A point many people miss is the different standards of proof in criminal vs. civil courts.

To be convicted in criminal court, the jury must believe the case proven ``beyond a reasonable doubt''. If you can reasonably question the prosecution's case, you must vote to acquit.

On the other hand, in civil court the standard is simply ``the proponderance of the evidence''---if the plaintiff (not prosecution: two different things) has better evidence, a more convincing case, than the defendant, then vote to award damages.

In other words, in criminal court, it's gotta be, say, 98% proven, while in civil court it's 50% plus epsilon. Thus, it's perfectly reasonable for the two OJ trials to both have come to correct conclusions.

Re:Utterly superfluous

[streetlawyer]

No, you can use a bit-for-bit copy if you can find some way of generating the session keys. The scrambling of the content, plus the inaccessibility of the session keys, together, go to make up CSS.

I don't think you could "easily" emulate the DVD session keys just by "writing a driver". Unless you have a specialised piece of equipment, or unless you can steal them by hacking a DVD-player (this, btw, would also count as "circumventing a copy protection device" under the DMCA). What kind of technique do you have in mind? (BTW, feel free; general discussion of techniques, as opposed to the creation of tools, is very definitely protected speech for which the strict test applies.)

Re:Utterly superfluous

[(void*)]

Oh, streetlawyer, do you really think you can pass that by a techie?

... it is impossible to copy the session key tracks without specialised equipment.

That's very clever phrasing. Now what is entailed in COPYING? One must read the session key tracks, and be able to write them!

Why is copying difficult? Becuase the DVD hardware reads the key (it must do this, or decoding cannot proceed), but does not pass it out to software control. If the software controlling the DVD player could obtain the session key there is no problem with writing it out!

In other words, that is how a licensed player must operate. Who specified this behaviour? The DVDCCA. There - the evidence for player lock-in, and anticompetitive behaviour is out now.

How specialized is this equipment to read this session key? Not more specialized by far. You just need to get rid of that chip is that not passing on the session keys, and substitute it for one that passes the entire raw DVD sectors on. It would be trivial to reverse engineer the hardware to figure out which piece of electronics is disrupting the hardware stream. It seems that some piracy cartels in HongKong have figured this out and are pressing DVDs in masses.

Some techies are not dumb too.

Somebody explain to me why

[El Volio]

Seems to me that, despite all the chatter about how the Internet is "changing the world", fundamental principles (freedom of speech, etc) still apply. The judicial system isn't perfect in any country, but I can't possibly see how this would help.

Simply put, it takes time for the judiciary to catch up to any new concept. Look how long it took the civil rights movement to win in the US courts. Whatever the problems still may be, racial discrimination is no longer a socially acceptable norm. That was a far more important concept, and it took time.

It will be the same here: despite the beyond-reasonable cynicism of many geeks, in time, the courts will eventually get things more-or-less right. Nothing will ever be perfect, granted, but let's not assume that everyone except technically qualified people are incompetent to have enough of an understanding of technology to be able to apply the legal principles upon which our society is based to it. And let's please not assume that there's any link between technical competence and ethical standards.

Um, er, maybe it could, um, be better?

[msnomer]

(cringes at the wrath she may receive)

I've seen endless comments here about the braind-amaged rulings that keep getting made about IP issues and such. Perhaps if the court had better knowledge of the issues involved and the potential implications, high-priced corporate lawyers wouldn't be able to get away with inaccurate technojargon and better rulings might result? I mean, it's not like the rulings on these sorts of issues (with the exception of the Microsoft one) have been all that great, y'know.

--meredith

What, then, should be done?

[FatouDust]

While I agree that segregating a court has its own set of inherent problems, it is still clear that there must be a better mechanism to deal with technically complex cases than what currently exists.

If not a tech court, then what? Advisory boards of tech experts in various fields? Translator expert witnesses to explain the cultural and ideological background to bits of code? If not tech judges, then tech lawyers, specializing in languages or fields?

As these cases become more common, and as their impact widens, it will become clearer that change is necessary.

Perhaps more importantly, how about that other branch of American government that is drumming up these technically inept laws to begin with? Why don't you elect a tech Congress, instead?

---
"The Constitution...is not a suicide pact."

Re:What, then, should be done?

[david duncan scott]

Guess it's just me (after all, I'm just a citizen of that "hayseed jurisdiction", right next to those inbred yokels in DC), but:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

I think the dodge in question (is there a lawyer in the house?) is that your tax bill is a procedural matter rather than a crime as such. I'm not sure that tax fraud could be settled without a jury option, but levying the bill can.

Re:What, then, should be done?

[GMontag]

My basic solution to all of this court misconduct by both judges and prosecutors is actually have them accountable. Plus, get rid of about 90% of the courts and 99% of the laws that go with them.

End all judicial and prosicutorial immunity and have them subject to an automatic, maximum penalty that the accused was threatened with when the misconduct occurred.

Perhaps that would set a general mood that courts are not the playground of leagal BS mumbo-jumbo and that the court workers are not above the law.

Now, for the 2600 case in particular, maybe if the bench verdict was appealed to a jury some sensable verdict might be reached. However, even though I ain't no lawyer, I do not think that a jury is an option.

<rant>
BTW, you do NOT have a right to a jury trial, you have a right to "due process", does not have to include a jury (or in the case of the IRS, a real court or judge). Unfortuantely, the government, entertainment industry and news media, have given the general public plenty of misinformation about the court process and what "due process" really is.

Maybe holding the courts to that fantasy that they wis perpetuated outside of their big oak doors would work? Where everybody gets read their rights (no longer required almost anyplace), court appointed lawyers actually win cases, warrants must be filled out and signed to be admissable, nobody is coerced, rights to various hearings are never signed away to be moved to a better part of the jail, etc. (review the actions of the state in the Mitnick case).

Might that knock a dent in that 98% fed "conviction" rate and maybe the USA would not be the home to 25% (or is it 50%) of the whole world's prisoners?
</rant>

Visit DC2600

Re:What, then, should be done?

[Znork]

Advisory boards would work well, tech experts too. After all, 'high tech' isnt really that complicated compared to many other things the courts have to handle.

The 'problems' in the DeCSS case was a prejudiced judge with a conflict of interest, and in the Microsoft case, well, you know and I know (well, everyone not subject to Microsoft groupthink and stock option blindness knows), when you're forging evidence you're usually in a rather legally untenable position so I dont think a high tech judge would make any difference.

But like you say, for the sake of humanity, _do_ something about the raving madmen passing the laws like the DMCA and UCITA.

Re:What, then, should be done?

[david duncan scott]

Yes, you certainly can. There is a difference, however, between some star chamber deciding that you owe Uncle Whiskers $3 billion and that same court sending you to jail. The case described was one in which the Infernal Revenue court decided that X owed Y dollars. He wasn't convicted of a crime, he was notified of a debt (in Uncle's eyes).

Had he failed to pay that debt, then, perhaps, he would have been guilty of a crime and a jury trial should have been an option, after which the Minions of the State would have hanged him by the neck until dead, enslaved his people, and salted the earth of his homeland, as per normal procedure.

The point is that owing tax is not, by itself, a crime -- we all owe tax when we earn money here in this great country. What happens if you don't pay it becomes more complex, but filling out your 1040 is not a confession of a crime, and discussions of the amount owed are not criminal charges. (For that matter, if you get a refund it's not a pardon.)

Mind you, this becomes somewhat academic when the Revenooers (sorry, it's that hayseed thing slipping through) sieze your property and kill your dog and whatnot, but while they are apparently empowered to shoot you many, many times if you get in their way, I don't think that they are empowered to jail you without a trial in a real court.

Re:Two quick comments:

[Masem]

Only problem with the advisor idea is the same problem with Kaplan and his former employment with TW in the decss case - any person involved with the judical system and employed on a permanent basis can be in no way imparitial to every case he sees. Most judges are ethical and step down or pass the case along to a different judge if there is a conflict, and I would suspect similar advice could apply to a tech advisor, but I would expect that there would be very few of these compared to the number of judges, and so passing on the task will not be easy.

OTOH, if the case could call for a technically qualified person in that field, maybe the two parties could pick an advisor from said case as with jury selection -- but again, the numbers of people that will be willing here would be low and this basically amounts to having the expert witness. Generally expert witnesses are supposed to be unbiased and are necessary to clear up the scientific mumblings of the law, just to so the side that does bring him in that *science*, not what the guy said, but the fundamental laws of science, are in that side's favor.

More Microsoft trash, if you ask me.

[CodeShark]

Having read the first fifty or so comments, I am surprised by how many people have missed one of the main points which is that in spite of volumes of evidence to the contrary, Microsoft is still basically insisting that they "did nothing wrong", in spite of the fact that very few of the "findings of fact" upon which Judge Jackson based his decision are really in dispute.

So when the NYT reports that Microsoft thinks they got a bad decision because the judge didn't understand the technical, I am inclined to remind M$ that the specific reason they lost is that Judge J. was not only probably the most clued in judge they could have had the misfortune to come to trial with, and he gave them every chance to settle the anti-trust litigation -- and they, not he, blew every chance they had to get a better outcome for their company.

Also, AFAICT (as far as I can tell, if you're new to /., IRC, etc.) Microsof still continues to use 90% of the same unfair business practices which the Sherman acts prohibit (tying, etc.), and aren't really interested in changing the way they do business in the future.

And as a measure of whether or not their monopoly power has a negative effect on consumers: witness the rise in OEM cost for the basic x86 OS, for example -- rising from a few dollars back in the MS-DOS days, $20-40 during the early Windows days, to (last time I sold a system -- about a year ago -- I'm doing software exclusively now), $100 or more.

Which is why (on those rare days when I have extra time, like today), I work on Open Source projects or training other corporate folks in the OpenSource model of IT development. I may not be the loudest Open Source proponent, nor the most articulate, but I do know one thing: the best software choices for the future aren't centered around M$, because of the exact issues that I feel Judge Jackson correctly nailed M$ for.

Re:More Microsoft trash, if you ask me.

[Ho-Lee-Cow!]

Oh, I don't miss your point in the least. It just simply is far too disgusting to think about. Come on...M$ is trying to tell the Supreme Court that they aren't qualified to hear the case!

Fortunately, this particular court is an ornery bunch. I pray daily that they take the case, simply to spite the children in Redmond who think they can bamboozle the court system. Think for a moment on the horror in Bill Gates' eyes when he hears that they took it--then sit back and watch the M$ spin doctors go to work and insult the court a few dozen more times before they get their 30 minutes....

You think Scalia and the others are going to not take the arrogance of this company into account as they look over tens of thousands of pages of documents? I'd love to be a fly on the wall while the interns are sorting all that material....

Re:Utterly superfluous

[jakew]

How, exactly, are Hong Kong citizens affected by a US law?

Re:Utterly superfluous

[Steve B]

A bit-for-bit copy of a CSS-scrambled DVD is useless, as it is impossible to copy the session key tracks without specialised equipment.

Again, that's access control, not copy prevention -- the bits have indeed been copied, but the data is inaccessible.

If you have any further legal questions

You said that this discussion is to be limited to technical questions. Which is it?
/.

What next?

[segmond]

Murder court?
sex court?
divorce court?
Tech court?

I just think that the judges should learn about technology, They don't have to run linux. But they should understand the tech world from an abstract point of view, the culture, etc.

The future judge

[Pseudonymus Bosch]

We are in 2000 AD , ain't we?

The best judge you can expect is Judge Dredd .

Hi from Richard M Stallman Block!
__

Re:Utterly superfluous

[streetlawyer]

All this is perfectly true, and I never denied it. However, you appear to have missed two points:

1. The fact that the CSS standard is anticompetitive and leads to player lock-in is irrelevant to the DeCSS case. Contrary to what you might think, monopolistic behaviour is not illegal per se, and it certainly doesn't nullify your rights to have your copyrights respected -- including the protections of the DMCA, which whatever you might think of it, was passed by both House and Senate.

2. The Hong Kong pirates, and anyone else carrying out the piece of reverse engineering you describe, are committing an offense under the DMCA, as they are circumventing a copy protection device. CSS consists of the hardware and the encryption; an attack on either is an attack on the whole, and illegal.

Hence my point; it's much easier for a lawyer to understand the technical issues than a techie to understand the law. Lawyers don't get emotional and lose their objectivity over technical issues; the vice versa doesn't hold.

Re:Utterly superfluous

[streetlawyer]

A bitwise copy of the DVD would be playable in a standard DVD player.

Bzzzt, wrong, thanks for playing. A bitwise copy (in the normal sense) would not include the session key tracks, and would not be playable on a normal DVD player (or for that matter, any DVD player). CSS controls copying by placing the keys in a separate place from the encrypted data, and preventing straightforward access to the key tracks. It is both a playback control and a copy protection device, and the distinction is unimportant for the purposes of the DMCA in any case.

It's doesn't take a rocket scientist

[ch-chuck]

to understand "leveraging a monopoly in one sector to gain an advantage in another sector", - M$ft are masters of the "if you can't dazzle them with brillance, blind them with bullshit" game - heck, I use technical obfuscation myself sometimes to get my way, if you can get your judge to think, "Hmmm, I don't understand, so he must be right." The problem in the M$ft case is they finally came up against someone who wouldn't fall for that crap. This idea smacks of jury packing. It's doesnt' matter if you monopoly is a railroad, an electric company, a waterworks, or DOS - technical competance has nothing to do with it. Msft had plenty of opportunity to interpret their case to the judge, and explain just how integrating an add on commodity internet browser into their monopoly OS was NOT an anticompetitive act to give their backward (at the time) product a leg up in the market, just as integrating a word processor into their monopoly OS would be anticompetitive in the word processor application market.

Those guys need a precipitous drop from the sublime to the rediculous. The bigger they are, the harder they fall.

Hmmm, StarOffice for $39.95.

Re:Utterly superfluous

[Karellen]

Uh - how can people in Hong Kong commit an offense under the DMCA, as they don't live in the U.S.A.?

Yes, they can commit offenses under international copyright laws (such as making copies unauthorised by the copyright holder that do not fall under the heading of 'fair use'), but I have this strange feeling that the fscked up shit that went into the DMCA (like circumventing & reverse-engineering access control mechanisms) doesn't quite fall under that heading.

K.

eJudges?

[BlowCat]

Imagine eJudges sitting in eCourts and applying eLaws (and iLaws) to ePeople and eCompanies. What do you, eGeeks and iNerds think?

Re:eJudges?

[(void*)]

eGads!

Re:Utterly superfluous

[streetlawyer]

the bits have indeed been copied, but the data is inaccessible.

Hence, there has been no copying of the protected content under the DMCA. Look, are we going to have to go through the whole Act here?

You said that this discussion is to be limited to technical questions. Which is it?

No, I was simply pointing out that I was billing you for an hour of my time, so you might as well use it. A reference to your own attempt to bill me. A joke. Laugh.

Re:Utterly superfluous

[January's Child]

There is nothing intrinsically more difficult about computer technology than about, for example, chemical manufacturing technology or aerospace technology. We as a society saw no need for special “chemical” courts or “aerospace” courts; I see no need for special “computer” courts.

However, I do see a need for some manner of qualifying expert witnesses in computer technology cases. The lack of such expert witnesses has resulted in a series of bad decisions that we will simply have to live with. I refer particularly to the expansion of copyright into a cheap and easy replacement for appearance and method patents.

I have heard the objection that the DeCSS case obviously showed the court simply did not understand the technical issues. I do not believe this was so. The court simply decided the technical facts were irrelevant under the DMCA, as arguably they were. (The court also engaged in considerable ad hominem attacks on the defendants, which is unfortunate: it means the first appeal will simply send the case back down for rehearing by an unbiased judge, rather than throwing out the DMCA on constitutional grounds.) The DeCSS case was not about technology, it was about the DMCA granting broad new powers to the copyright holder to control not only the copying but the use of its material.

It is not that technical questions are not difficult. They are. It is that technical questions are largely irrelevant in recent cases.

Re:Money rules

[david duncan scott]

OJ proved (the following civil case against him vindicated this view point) the the outcome of a trial in the US can be bought.

Yeah, we're off-topic, but I can't let this one stand -- do you really believe that OJ Simpson had more money and people available to him than the state of California? Just how much do you think football players / actors make?

His legal team was what, three or four lawyers? How many in the prosecutor's office? He had how many investigators, compared to the LAPD?

He had more available to him than Joe Schmoe up for assault and battery with a public defender, but not a fraction of his opposition. The prosecution was out-lawyered, plain and simple, not out-gunned. The verdict may not have been good, but it wasn't bought.

What a great idea!

[Anomolous Cowturd]

Hmmm... no doubt Microsoft would be eager to fund such a court and pick a few judges fit for this noble task, being so innovative and 30 years ahead of the competition in all matters technical, and all. The MPAA will chip in too!

Remember that wonderful war crimes court in the hague, which, though it may be funded by NATO, consist of staff hand-picked by NATO, and lack any jurisdiction over NATO, nevertheless has proven it's integrity by not dancing to NATO's fiddle. Indicting (with perfect timing) the elected president of the country NATO was bombing, was just a coincidence.

What a great idea!

Re:Utterly superfluous

[streetlawyer]

No; you can obtain access to the decryption keys for the CSS encryption, but not the session keys which are encoded on the key tracks of an official disk. A DVD player can distinguish between the two; a copy does not have the session key tracks and is unplayable. The reasonableness or otherwise of the CSS copy protection scheme is not relevant to the question of whether it is a copy protection scheme; and in any case, the issue has been decided in court, making "it seems to me" arguments otiose.

Start with better jurors

[Vassily Overveight]

My latest stint of jury duty convinced me that the problem isn't completely with the courts, but also with the jurors. At least half of our number was ruled completely by emotion rather than logic. If you hope to get an outcome that has any congruity with reality, you're going to have to get rid of these people. Of course, when reality is against you, these are exactly the folks you want. Which is why it'll probably never happen.

Re:Start with better jurors

[AndrewD]

... probably never happen

It did here in the UK, back in the 30s, with juries removed from civil trials except where an application is made to the court for jury trial (and it almost never is, judges sitting without juries being more reliable and predictable than juries).

The exceptions are defamation and police misfeasance actions, where the rule is jury trial unless there are compelling reasons otherwise.

Jury trials in criminal matters are unaffected (yet) which is as it should be.

Re:Utterly superfluous

[(void*)]

Point 1. In other words, more arguing needs to be done. I understand you are confining yourself to the points of law. But if you step back and take the big picture, why was the monopolistic behaviour not debated in the public, but the DVDCCA allowed make such a device to control public viewing?

Should the exercise of copyright enable monopolistic behaviour? This is an ethical issue, not a point of law.

Point 2. The pirates who have done this are in many circumstances are operating outside of the jurisdiction of the DMCA. And they did their reverse engineering before the DMCA took effect.

Which leads to another point. Simplying XORing the data-stream would have been sufficient, if all you wanted was legal protection using this anti-reverse-engineering clause. As it stands, CSS session keys are simply too weak. Software players exist to brute force the key and they work, I am told.

The DMCA itself also allows for the reverse-engineering for interoperability. As it is, LiViD is a effort to do so for the Linux platform. That it had to use code suggested by DeCSS should not detract from this goal.

courts for sale, blowout sale!

[Mr. Bob Arctor]

i got a feeling that a tech court would almost undoubtedly be seen as a court meant to make law to govern 'the business of technology'. such a court could easily be used by the corporate lobbies as a tool allowing them to divorce freedom of speech, the right to privacy, etc. from technical cases. notions of representation and the coming importance of digital identity would have no relevance in such a case, i'll wager that the decisions made by such a court would almost unilaterally ignore the general social impact of their rulings, focusing instead of financial law. the biggest fear that corporations have right now regarding rulings on technology and the internet is most likely that the standard court might, through some glorious epiphony, become aware that there is indeed a direct link between many of the technical subtleties of these cases and the future of our basic liberties in the coming years. what needs to happen is that politicos and judges throughout the ocuntry need to become aware that they are doing much more now that merely specifying the guideline for the growing internet economy...

Re:Utterly superfluous

[Kintanon]

Bzzzt, wrong, thanks for playing. A bitwise copy (in the normal sense) would not include the session key tracks, and would not be playable on a normal DVD player (or for that matter, any DVD player). CSS controls copying by placing the keys in a separate place from the encrypted data, and preventing straightforward access to the key tracks. It is both a playback control and a copy protection device, and the distinction is unimportant for the purposes of the DMCA in any case.



What kind of crack are you smoking? A perfect copy of the DVD is easily possible and they are created all of the time. The Keys are on the DVD, otherwise their existence would be pointless. Anything on the DVD is physically copyable. CSS does not prevent this.

Kintanon

my response to all the above.

[streetlawyer]

I never claimed that US laws were enforceable outside the USA, and none of my argument depends on this point. I might as well turn the question around; how can what Hong Kong pirates are doing be relevant to an American court case?

So long as Hong Kong pirateskeep their activities and pirated DVDs in Hong Kong, they are beyond the reach of US law; however, these DVDs are contraband and subject to confiscation and penalty by US Customs.

Re:my response to all the above.

[(void*)]

The Hong Kong pirate was an example raised by me to answer the technical point: how does one make a bit-by-bit copy of a DVD?

It is to point out that CSS does nothing to actually control copying, and everything to control access. If these pirates can copy DVD's without circumventing any copy-protection, then Why is CSS necessary? Why does the MPAA not go after the Big Time Pirates (they are certainly rich enough to do this) but instead go after the people who have bought DVD's, and (by using DeCSS), desire to buy more DVDs?

Re:my response to all the above.

[streetlawyer]

They cannot copy DVDs without circumventing copy protection. The copy protection on DVDs (CSS) consists of two elements; the encryption which DeCSS broke and the physical separation of the session keys and their readers from the content stream. There are twin points of vulnerability, both of which have the protection of the DMCA. You are mistaken if you think that the MPAA does not spend a great deal of time and effort fighting physical attacks on its copyright protection.

Re:my response to all the above.

[(void*)]

You are right. But additionally, people attempting to view the DVDs on licensed players are also intent on circumventing copy protection. Why? Becuase it was a US customer trying to view a Japanese DVD!

The legitimate players giving customers a way to break the rgion encoding too, is a circumvention device.

The old Xing player, which cannot view newly produced DVDs (becuase of the revocation of the player keys) is also attempting to circumvent copy protection.

When licensed players view unencrypted content, it is circumventing the copy protection. (Becuase the Content happens to be GPLed, and cannot be subject to restrictions imposed by the MPAA cartel.)

Weaselly streetlawyer vs slashdot geek - who will win?

Re:my response to all the above.

[(void*)]

And to answer your question directly: no. the Hong Kong pirates weren't copying the DVDs. They were merely writing them, encrypted content and player keys - everything!

If and when Hong Kong adopts the DMCA, it may not be the case that these DVD stamping factories are illegal. They merely stamp. Who circumvented the copy protection on the original DVD? The real culprit is unknown, and the MPAA would probably never know. Nevermind - let's persecute these guys under the DMCA becuase they are copying.

Face it. DMCA + CSS = screwed up, half-assed legislation.

Re:What next? - hate crimes

[Smallest]

why not... you already have different laws depending on the race or sex of the victim/perpetrator (hate crime, domestic abuse, etc).

why not have different laws for different professions? "Five years? That's nothing. You're lucky you aren't a bricklayer; they get 10 years for murder!".

-c

Re:Utterly superfluous

[streetlawyer]

The keys are on separate tracks of the DVD, which are read separately from the reading of the output. It is not possible to "Physically copy" the key tracks without licensing a special piece of equipment, or without reverse engineering a DVD player to gain access to the read signal from the key tracks. This second activity also counts as "circumventing a copy protection device".

Re:Utterly superfluous

[Cardinal Biggles]

Lawyers are smart enough to learn any concept in a few coffee breaks? I'm going to need a few very long coffee breaks before I'm convinced of that.

Also, what legal principle is violated by having specialized lawyers/judges? The Supreme Court in my country consists of several Chambers, each for a particular 'area' of the law. What exactly is principally wrong with that?

BTW, your claim that in a capitalist economy, the highest-paid people are the smartest is complete nonsense, IMHO. Why then wasn't Einstein extremely rich, and why isn't Dan Quayle homeless?

Oh, and for the untrue statement by Kaplan you requested, how about this one:

Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.

It's on the final page (93). And utterly false. Granted, this doesn't come from technical ignorance, just from plain old bias, but you asked for an example of where he was factually wrong (legal and moral issues aside).

Re:Utterly superfluous

[Kintanon]

The keys are on separate tracks of the DVD, which are read separately from the reading of the output. It is not possible to "Physically copy" the key tracks without licensing a special piece of equipment, or without reverse engineering a DVD player to gain access to the read signal from the key tracks. This second activity also counts as "circumventing a copy protection device".


But the copy protection device being circumvented is NOT CSS, it's a physical measure. CSS is not what prevents copying and DECSS does not bypass the physical protection method. DECSS does not circumvent copy protection, it circumvents playback protection.

Kintanon

Money rules

[weeble]

I believe we would not see any more 'fair' justice. I do not believe that judge Kaplan would have had a different verdict had he been better informed regarding the relevant technologies.

OJ proved (the following civil case against him vindicated this view point) the the outcome of a trial in the US can be bought.

Having technology courts in the US may help, but does not tackle the cause of the problem.

Re:DeCSS must live! Mirror a copy today!

[(trb001)]

Why do I have a feeling that the DeCSS is going to become like the Descolada virus from the Ender's game series? --trb

American Law

[vapour]

I think that Americans need to take a deep look at their own judicial system before messing with a new court for technology.
.
..

Not such a bad idea, after all...

[Dreamland]

Why do I suddenly come to think of when the judge ordered that Kevin Mitnick not have access to a phone from his prison cell in fear that he might somehow continue his hacking spree by whistling into the telephone...

Re:Not such a bad idea, after all...

[spongman]

Well, all he needed was a box of cereal, right?

Re:Not such a bad idea, after all...

[seanmeister]

I'm not a expert on Kevin Mitnick, but wasn't a big part of his shtick "social engineering", like calling folks on the PHONE to get passwords and other info about the systems he wanted to crack?

Sean

It is not needed in the MS antitrust case

[cansecofan22]

The MS antitrust case is about Microsoft using its power to unfairly leverage users and pc manufacturers to use its browser. The case is about a Tech company hurting the "normal user". The normal user is not going to understand or care about things in deep technical detail. The thought that some people should go to one type of court and another go to a different court is crazy. Would that put all of the "smartest" judges in one court and the rest in another. We already have a messed up enough judicial system, we dont need another member to mess it up further. Let normal people decide the things that will affect the rest of us normal people. If we need to go further there is the supreme court after the federal courts after the state and local courts.

How will the judges be picked?

[jjr]

I hope at least they would require so type of degree in CS for the judges. What would the requirement be for the judges that they are Office Certified? Or will they have a team of experts with a head Judge controling them? THis has alot of merit if it is done right.

Two quick comments:

[Masem]

1) I doubt tech courts would have helped 2600 -- as the other article today points out, this is more of a free speech issue as 2600 never created the code, though there are issues as the use of the code. But the creation of such courts could be a good think.

2) Unfortunately, there are too many issues at stack *right now* that by the time the tech courts would be in place, these issues would have exhausted their appeals process. Take a look at the problems with the Patent office in getting computer technological compenent people into place.

3) Very very commonly, cases involving sciences use an expert witness, generally a scientist or engineer that is unrelated to the case but an expert in the field. I would think a similar system would work for computer experts, however, there is something of an informal fraternity of geekdome throughout this area, so that finding a computer expert that was imparital to the deCSS case would probably be very difficult. But I don't see why this can't be attempted at least.

Who'd they choose?

[neildogg]

Wouldn't it make sense to choose the type of people who read slashdot and such internet publications to be the jury in such cases? Wouldn't these be the type of people who have a complete knowledge of what everyone's done in the tech industry? Because, as I figure it, Microsoft is digging their own grave, because if you got people who understood exactly what was happening, like us here at slashdot, Microsoft would be screwed.

Re:Who'd they choose?

[streetlawyer]

Now that, my man, is a sweet troll. Much better than my effort below. Watch 'em flock to it. Mad props.

Strange

[garethwi]

I find it rather strange that Microsoft should be backing this, considering that their case was really rather non-technical. It was more about business practices than actual technical minutæ.

The DeCSS on the other hand would be much more deserving of this kind of court, as it would take someone who actually understands computing to, at least to some degree, make any sort of informed decision.

Re:You must be kidding, this is not rocket science

[Chakotay]

The above is the quality that you get when beurocrats are given any power over your life.

Exactly. What happens in that specialised tax court will likely also happen in a specialised tech court. Specialised judges will simply not be impartial because they know too much, and have over time formed too many personal opinions that will interfere with their impartiality.

As a judge (or lawyer?) said some distance up in this discussion, judges and lawyers are the most intelligent people in American society. As he said, a good judge (or lawyer) will be able to grasp the necessary knowledge about any field within a short time, from aerodynamics in case of a plane crash case to structural engineering in an unsafe building case. A judge should gather facts and knowledge about a field he previously had no knowledge about and draw an impartial conclusion based on only those relevant facts and knowledge.

Another reason why a tech court would probably be a bad thing is, how do you decide whether a judge has technical knowledge and in what fields? There's way too much risk of big corporations influencing judges by means other than relevant facts.

)O(
Never underestimate the power of stupidity

It does no good at all.

[dido]

The real reason why you guys in America have had cases like Napster and DeCSS is not that your judges are technically ignorant. Well, they are, but even if they were not I believe that that wouldn't have changed the verdicts one bit. The issues involved in both these cases however are really about technology, but the trouble is not that the judges didn't understand it; it's that the plaintiffs that have absolutely no comprehension of the technology! The MPAA and RIAA have to get it into their heads that their business models have been made obsolete long ago by technological change, and attempting to leverage the not inconsiderable power they obtained in their zenith to push it back will only make things worse for them in the long run. The Third Wave is here. If these dinosaurs of the Second Wave wish to survive it, they must evolve to match, and think up a new way of working that swims with the wave, not pushes against it. They have the look of Luddites destroying machines. I think nothing would make them more happy than to see every computer in the world dumped into the sea. A new court is not the solution. The solution is for plaintiffs to gain more vision and try to see how they can work with the new technologies rather than against it. And in the meantime take steps to take the power that has been corrupting them back.

Re:Ridiculous

[david duncan scott]

Yeah, and then you might have traffic courts! And civil courts! And small-claims courts! And rent courts! It would never end!

Re:Utterly superfluous

[Kintanon]

No, you can use a bit-for-bit copy if you can find some way of generating the session keys. The scrambling of the content, plus the inaccessibility of the session keys, together, go to make up CSS.
I don't think you could "easily" emulate the DVD session keys just by "writing a driver". Unless you have a specialised piece of equipment, or unless you can steal them by hacking a DVD-player (this, btw, would also count as "circumventing a copy protection device" under the DMCA). What kind of technique do you have in mind? (BTW, feel free; general discussion of techniques, as opposed to the creation of tools, is very definitely protected speech for which the strict test applies.)



Disclaimer: I think you're an idiot.

A bitwise copy of the DVD would be playable in a standard DVD player. CSS does not prevent the creation of a bit for bit copy of the DVD. Hence CSS does not prevent Mass Pirateing of a DVD. CSS only controls playback by disallowing playback on non MPAA approved players. From this we can draw the following conclusion: CSS is a playback control device, not a copyprotection device.
The addition of 'special equipment' into the picture is irrelevant.

Kintanon

Re:Utterly superfluous

[streetlawyer]

That is not a statement of fact; it is a comment and would clearly be found to be such in any libel or slander hearing. And it is hard to read a few issues of 2600 and not come away with the opinion that Kaplan was right on the money.

Re:Utterly superfluous

[nihilogos]

A bit-for-bit copy of a CSS-scrambled DVD is useless, as it is impossible to copy the session key tracks without specialised equipment.

That doesn't make the copy useless. According to the decision: I can lawfully obtain access to the keys by purchasing a DVD player or drive, which can't distinguish between a copy and an official disk. CSS seems to require that I purchase an 'official' drive, which for me is an unreasonable requirement.

Incidently, there's very little in that decision that I'd consider technical.

What a generalization

[ch-chuck]

Interesting discussion nonetheless.

Lawyers don't get emotional and lose their objectivity over technical issues; the vice versa doesn't hold.

There was a joke about the differance between a farmer and a redneck - the farmer raises cattle, but the redneck gets emotionally involved :)) I'm starting to think the differance between a computer scientist and a computer hacker is the scientist writes software for a living but...

BTW - not everyone here are 'kids' (41)

Not news in the UK

[AndrewD]

Our Technology and Construction Court was founded in 1890 to try cases with a heavyweight technical dimension; they cover any case that has any kind of tech angle from big civil engineering to pcbs (and I've handled cases from both ends of the spectrum there). What follows is a practitioner's view.

The judges are drawn from the bar who practice in that field of law. They're people who understand the industries they have before them as a result of working as part of the legal support of those industries for twenty or more years before elevation to the bench.

That's the theory: the practice is less than a hundred per cent as in anything with people involved. I could, but won't, name a couple of T&C judges who are blithering old idiots.

That said, I can name still others who are sharp, incisive and know their stuff very well and who aren't afraid to inform themselves on the way things work (I know at least on judge at T&C in London who knows how HTML works, principally because I explained it to him).

The software copyright and confidentiality angle is dealt with by the Chancery Division of the High Court, whose judges have a solid grounding in these sorts of issues through hearing cases and, increasingly, through having been practitioners.

Choice of forum is left to the litigants, by and large: if it's more hardware or software engineering, go to T&C. If it's copyrights, designs and patents, go to Chancery. Sometimes it's a judgment call between the two, but I think the essence of it is that either way you get a professional judge rather than <flame> an elected buffoon with the professional standards of a chartered accountant.</flame>

He didn't say "ill-equipped"

[PhilHibbs]

"For Judge Jackson to honestly make the comment that he was ill-equipped says something," said James L. Thompson ...

That is not what he said:

Judge Jackson said he had backed a proposal by the Justice Department and state attorneys general to break up Microsoft because "there's no way I can equip myself to do a better job than they have done."

There's a big difference between the two, and Thompson iss twisting Jackson's words. Unless he was quoting a different statement, in which case the NYT article is a little misleading.

A government imposed solution is wrong

[Hairy_Potter]

I think this is dangerous, just one more way the government is trying to rein in the computer industry.

The computer industry thrives on competition, anything interfering with that competition will hurt the computer industry.

Can you imagine what would have happened if Novell sued Microsoft for including non IPX protocols in Windows? We'd still be stuck running IPX intead of IP, forget about having an internet.

Can you imagine what would have happened in DEC had sued Novell over networking software? We'd still be stuck in the stone ages on networking, rampant competition is good for the consumer.

Linux sure hasn't needed any government help to battle Microsoft, eventually the free hand of the marketplace catches up with everyone, and then bitchslaps them.

If this government interference keeps up, I can only see the US computer industry being saddled and tied down with regulations and litigation fears, like Europes, and the quickest computer innovations will probabaly take place elsewhere, Japan probably, just like Gibson predicted.

Not Likely to Happen

[GKlesczewski]

I don't think this is likely to happen. The first problem is that the lawyers don't want technocrats sitting on the bench because then their ignorance (in many cases) will show through. Also - the corporations would rather have the normal court systems available to them instead of ones that are dedicated to technical/technilogical cases. The prime example is the DeCSS/2600.com case. A technically astute judge would not have permitted the MPAA lawyers pulling the wool over the court's eyes...

Utterly superfluous

[streetlawyer]

What we have here is a prime example of some depressed hayseed jurisdiction trying to become an "e-commerce" centre to provide a substitute for dope growing, by futzing about with legal principles.

Home truth time, boys: technical questions are not difficult. Read Kaplan's summary of the technical issues in the DeCSS trial (I said read it, not skim a slashdot article about it). Then read the half-assed legal opinions of the crowd of mindless-but-technically-competent IANAL slashbots. Then form your theory according to the evidence, as to whether law or tech is the difficult subject.

A trained legal brain can master any subject in its salient details. Whether it's analogue circuitry, analysis of bullet wounds, office building construction techniques or whatever, a good lawyer picks it up. I myself have learned and understood the TCP specification during a couple of coffee breaks, to a standard where even the expert witness (a professor from Rice) admitted I could pass one of his midterms on it. It's a skill that lawyers happen to have.

Look, kids. Lawyers are the highest paid employees in the country (don't bother me with talk about stock options; that's not real money). Law is the most prestigious job in the country. It's a capitalist economy. Of course lawyers are the smartest people around, on average.

Oh yeh, and for all the people determined to slander Judge Kaplan -- give me just one example of a technical mistake made in his judgement. Not a legal error -- you quite simply are not qualified to argue with me on that subject. Not a statement which you personally believe to be morally wrong; aside from you and your therapist, nobody cares. Just one, single, statement of fact in the judgement, which is not true.

Come on, slashdot. Put up or shut up.

A Setup for Segregation

[whoosie]

This strikes me as exactly the wrong thing to do. To attack the problem of public (and courthouse) knowledge of technical issues, we ought to be encouraging ways to increase the public's exposure to technical issues. If we segregate them in a special justice system, we segregate technical people into a "special" group, which would be subject to resentment from the public at large. It would create a formalized, legally enforced, "class society".

Re:You must be kidding, this is not rocket science

[Weezul]

Yes, specilized courts like tax courts are evil. The solution to things like the DeCSS case is really to (a) make conflict of intrest a much bigger crime (and make it easy to convict a judge like Kaplan of conflict of interest) and (b) make going to industry lobing seminars a conflict of interest.

I would say a judge making a decission like Kaplans should be tried for conflict of interest for mearly having been to several seminars which can be shown to have been intended to influence his opinion. now, he would not be convicted untill the content of those seminars was fully examined (i.e. did the experence create an "interest"), but the fact that he would need to stand trial should prevent many problems.

I would say we also need some kind of anti-matching fund for lobists or a lobist tax to limit the effectivness of spending large ammounts of money on lobing judges and representitives. If your corperate lobists spend $1 million dollars then their oposing lobists (like consumer activists or enviromentalists) recieve $100,000 (10%) of that money to spend on countering your expendatures. This would help keep the lobists plaing field even, so representitives would hear all the diffrent opinions that they need to hear.

U.S. Judge

[Etriaph]

Jackson is a judge. Judge's are not stupid. Get real. Tech courts will lead to more law inhibiting freedom. That will suck.

An example of why I don't practice

[2quam4]

I was a techie before law school and was sickened by the amount of arrogance and pompous attitudes in the system. Sure, I was on review and worked for a federal judge. It wasn't worth it. I returned to tech because I couldn't put up with the slime. Your attitude is a perfect example:

"Look, kids. Lawyers are the highest paid employees in the country (don't bother me with talk about stock options; that's not real money). Law is the most prestigious job in the country. It's a capitalist economy. Of course lawyers are the smartest people around, on average."

-- Excuse me while I vomit and worship the toilet. First-hand experience: attorneys are at the bottom and work in one of the least prestigious positions in the country. Capitalist economy? I never saw a socialist and totalitarian system in the U.S. until I saw the workings of firms. Moreover, attorneys generally entered the profession for the passion of "making money," not, like in the tech world, a passion for the work (your message provides this example). Generally, how long do attorneys remain to practice law? Finally, the vast number of attorneys I worked with are far from intelligent. Look kiddie using Yahoo for email, just how many briefs to a federal court have you analyzed? Sure, generally all attorneys (if they actually wrote the briefs themselves) make citation errors, but the majority do not spell well and use poor grammar. As far as an understanding of the use of technology by attorneys? None. The very reason I returned to tech. The legal community is the very segment of the population that keeps this nation's "not able to program the VCR" populous so high.

I would argue you that you are glorifying the legal community much more than what it is worth -- are you considering a change in your career? Cannot find another position you would qualify for because you only have a legal background? Attempting to fool yourself that law is "not that bad?" Wishing you could go back in time to pick up a MIS degree instead of a JD?
I need to stop. Your time isn't worth mine.

Ridiculous

[Crewd]

Tech courts? Why not medical courts for when there are health issues on the table. What about seperate courts for bank fraud? There are plenty of areas where Judges are not experts. What matters are that Judges are experts in LAW! The burden of making a case understandable to the Judge and jury lies on the lawyers. If you have a tech case, hire a lawyer that is able to get your point across clearly to even non-tech people.

Bah!

[Steeltoe]

Anyone who have read transcripts from Judge Jackson know that he knew what he was talking about. Microsoft IS a monopoly, just like AT&T and many others before. When a huge company strangles the market, killing off all competition, something must be done by the government.

While it may be interesting to argue technicalities in a court of Law, the fact is most of these "tech-cases" are about freedom and other Law-issues. However, Microsoft wants to argue details about how to implement an OS with a browser "their way", which is completely besides the point and the final ruling. Tech-issues would only shift the focus AWAY from important issues, like freedom, privacy and general legality, which is what courts are all about.

"Tech-courts" would be a VERY BAD THING. It would fragment an already complex court-system further. I suspect it could become yet another loop-hole for huge corporations, funding whatever judges they want this week.

What is Microsoft basically saying here?

"The hell with the Judges, we want our own courts!!"

Everyone everywhere should cringe at the very thought of this. Educate the Judges on technical issues, don't replace your legal system.

- Steeltoe

You must be kidding, this is not rocket science

[GMontag]

Setting up special 'techno-courts' has the glossy sheen of futurism and hipness, but if the proposed high-tech courts are specialized by the content of their trials, what's to stop them from becoming self-perpetuating, invasive, and self-aggrandizing bodies within their particular fields of purported expertise, and using that expertise as a means of blocking criticism? Would such special courts be an improvement over better educating the existing judiciary?

We already have a perfect example of how specilized courts work (actually, they don't work very well) and that is called Tax Court.

What happens in any of these ivory tower systems is that the common folks (including those of us on /.) get bamboozeled by the "self-aggrandizing bodies within their particular fields of purported expertise". This is certainly not justice.

The 2600 case was one of pure bias, no decision in that case was backed up by any fact, and it would have probably been worse in a specialized court. It happens in "tax court" every day: state brings charges, state inflicts punishment, you have to prove yourself not-guilty.

I wish that I had the refrence for a glairing case of this from just a couple of years ago. An individual had paid his tax bill. The IRS cashed his check. Taxpayer had the cancelled check and bank records that the money left his bank and went to the IRS bank. The bank that the IRS used to clear the check lost the money. The IRS went after the tax payer. No matter how many times he produced the cancelled check the IRS said "we still do not have payment". The tax court ordered the guy to pay again! Now, if a group of "regular folks" had gotten to hear this case, it would have ruled for the tax payer, since the poor guy does not run the bank and all, but an "expert court" ruled the other way.

The above is the quality that you get when beurocrats are given any power over your life.

Visit DC2600

Tech courts

[stevelinton]

I think this could work, but it has to be done sensibly. In the UK we have specialist family courts, and various kinds of specialist commercial courts. The judges are still judges, meeting theusual criteria for the job, but, since they work in the specialized courts, they build up a general background knowledge in their area.

A tech court judge would not be expected to know everything about every topic they would be called upon to judge, but they would be in a better starting position to understand when one or other side tried to explain the technical background of their argument. The tech courts might also have special rules or procedures, for example allowing the court to appoint neutral expert assessors, or allowing more streamlined procedures for complex technical submissions. They would also be an expert on the most relevant areas of the law

Could be worth trying, but needs to be done sensibly.