DoJ Supports Dismissal of Felten v. RIAA Case

phalse phace writes: "The EFF is reporting that the Department of Justice has filed a motion to dismiss the pending Felten v. RIAA case because it's "not ripe" and it fails to address serious First Amendment problems. (Yeah, like threatening to sue someone for presenting their research on digital music access-control technologies isn't a serious First Amendment problem.) The preliminary statement of the DoJ's memorandum states: "Plaintiffs have not been prosecuted under the DMCA, nor have they been threatened with such prosecution...""

Comments

Re:How?

[LarsG]

How can you file a motion to dismiss a suit you're not involved in?

This is an amicus brief - that is, a statement from someone that is neither the defendant nor plaintiff, but has an interest in the outcome of the case.

RIAA et al has filed a motion to dismiss, and this is additional support from the DoJ.

If you look in the EFF archives, you'll see a wealth of amicus briefs in support of both sides in the recent legal battles - in addition to other material.

MPAA vs 2600
http://www.eff.org/IP/Video/MPAA_DVD_cases/

DVDCCA vs the Internet
http://www.eff.org/IP/Video/DVDCCA_case/

Felten vs RIAA
http://www.eff.org/Legal/Cases/Felten_v_RIAA/#fi le s

DoJ vs Sklyarov.
http://www.eff.org/IP/DMCA/US_v_Sklyarov/

Re:No, not really

[GigsVT]

It's called the SSSCA, and you owe it to society to go to EFF.org and educate yourself about it. It's not like you described, but it's just as bad.

Re:How?

[GigsVT]

I think the argument was that his civil rights were violated by the RIAA because of the threat to sue, that is, his 1st amendment rights to free speech. This is a civil case, not to be confused with a criminal case, which it would have been had he been prosecuted under the DMCA.

It's easy to tell a civil case from a criminal case, because in a criminal case, the plantiff will always be a government body. (e.g. GigsVT v. State of VA).

Re:Ummm. . . someone is confused?

[Anonymous Coward]

They didn't send him a cease & desist type letter, only a "friendly" (yeah, right) letter that warned him that his talk may infringe on their intellectual property.

If they had taken their threats one step farther, Felten and the EFF would have had a very strong case. But since their threats were somewhat implied in a legal sense (they didn't threaten with specific action) this case will be uphill.

I personally think it's still worth a shot, since we may turn up an activist type judge. It's too bad that the DoJ appears to be sympathetic to the RIAA but I can't really fault them for this particular filing, only the sympathies that it seems to betray.

Re:Impied threat.

[lash_whip]

"Justiciable" is not a made-up word. It's a legalese word, meaning that the court in question has jurisdiction and authority to try the case.

Re:Not an amicus

[floop]

This is a motion to dismiss (summary judgement). The motion is based on the fact that no actual legal action was taken against them when some went ahead and published/presented their "violation". The plaintiffs are alleging a "chilling effect" of 1st amendment rights due to the actions of legal council of the defendants. This will pass summary judgement if the plaintiffs can show material fact to the damages alleged.

Wait to see the response. That will show wheather this is going to fly or not.

Re:I think the RIAA has no right to sue Felton

[lash_whip]

The RIAA didn't sue Felton. Felton sued the RIAA and the attorney general, essentially asking for a declaratory judgment that he didn't do anything wrong. DoJ is quite correct that Felton was never prosecuted or threatened with prosecution (the language in the letter the RIAA sent to Felton was too vague to constitute a threat.) Unless you're actually a defendant or under threat of suit or prosecution, you don't have standing in court to challenge the constitutionality of a law. Otherwise any yahoo could go into court and waste time challenging anything he didn't like. For that reason, Felton is justifiably about to get his suit thrown out. Incidentally, as far as I can see the DoJ has not expressed an opinion on the merits of the case, only on the process. Why waste time bashing the DoJ for defending themselves against a lawsuit that any lawyer should have known not to file in the first place? Wait until they really prosecute somebody under the DMCA.

Re:IANAL, but Ashcroft seems to have a point...

[Anonymous Coward]

But Point 3 didn't stop Kaplan ruling against 2600.

And point 4 didn't keep Dimitri out of jail.

Big Business and the courts just apply the law however they want.

Re:How?

[s390]

GigsVT v. State of VA

Actually, that's a civil case citation. Hint: in a criminal proceeding, the plaintiff (the State) is always listed first, e.g., "State of XX vs John Doe."

Re:Is anyone really surprised?

[Artagel]

When the constitutionality of one of its laws is questioned, the United States can become a party to the case to defend the law. 28 U.S.C. Section 2403. The role is limited to defending the constitutionality of the law, not its application to the parties in the case.

"(a) In an action, suit, or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn into question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality..."

While one side or the other may or may not be big business in a particular case, the Attorney General is showing up to make sure Congress' laws don't get thrown out without being properly defended.

"unripe" == prior constraint?

[chad_r]

Pardon my ignorance. But is what they are calling "unripe", because the plaintiffs were never actually prosecuted under the DMCA, also known as a prior restraint on free speech?

So, if unripe cases can't be tried, is the only way to overturn a bad law to break it and get caught, hoping that unconstitutionality will save your ass in the end (the 2600 case)? If no one is brave enough to martyr themselves, isn't that what judges call "a chilling effect"?

Re:Implied threat.

[MindStalker]

I know you were joking, but just to inform the stupid, as I hate to let people get misconceved, poena in latin is "Punishment".
So pubpoena means under punishment.
Though thats kinda abusing the English use of under to mean more than below.

Brief explanation of "ripeness"

[raresilk]

This legal doctrine stems from the Constitutional limitation of US courts' jurisdiction to a "case or controversy." The judicial branch lacks jurisdiction to offer "advisory opinions" on how a law is to be interpreted, or whether it is constitutional. They don't have a general power to pore over the output of Congress and issue rulings on it. Rather, there has to be an actual controversy between opposing parties, which gives the judicial branch jurisdiction to decide questions of statutory interpretation or constitutionality presented thereby.

Ripeness, typically, is applied to cases that challenge the constitutionality of a law "as applied" to a particular set of facts, but before the agency charged with enforcing the law has actually applied the law in that manner. It is essentially a challenge to the judicial branch's jurisdiction - asserting that there is not yet an actual controversy. Looked at another way, analysis of a law's future hypothetical applications is too abstract for any court to perform reliably, and is therefore "non-justiciable." (Contrary to some comments, justiciability is not a made-up word, it's a well-settled legal doctrine.)

Although I've not read the DOJ's papers, I would expect their ripeness challenge to be along these lines: "We are the agency charged with criminal prosecution under the DMCA. We've never prosecuted or even threatened to prosecute the professor who is the plaintiff in this suit. Nor have we prosecuted or threatened to prosecute under the DMCA *any* member of academia on the basis of an academic presentation. Hence, there is insufficient basis to conclude that the DOJ would ever apply the DMCA to criminally prosecute academic speech, and this action is therefore not ripe."

That argument would normally be a strong one, and if you think about it, it makes sense. Virtually everyone who posts here is worried that someday they might be prosecuted under the DMCA, but until that happens to you, or there's a credible threat that it will happen to you, you don't have a lawsuit. The professor's case is modestly different, because the RIAA threatened to pursue charges against him. But as a private party, the RIAA cannot bring criminal charges unless the DOJ decides those charges are well-founded. Apparently, it has not so decided - hence, the ripeness challenge.

But wait -- don't give up hope yet. This is a First Amendment case, which opens up some other possibilities. A First Amendment challenge to the constitutionality of a law can be brought, not just to the law "as applied" to a particular set of facts, but to the law "on its face." The basis for a "facial" challenge is the "chilling effect" that an overbroad statute may have on speech, even if the speech itself is never prosecuted. Since free speech is highly valued, courts will apply this level of scrutiny to a statute that creates a substantial likelihood that worried people will voluntarily curtail their own protected speech, even if they are never prosecuted. In essence, it's a ripeness exception.

That argument ought to have a fair chance of success here. (Don't forget that the DOJ's mere motion does not decide the issue - the plaintiff gets to file a brief opposing the motion, and the judge makes the decision, not the DOJ.) A, the RIAA threatened to pursue criminal charges under the DMCA, and B, the professor cancelled his presentation as a result. Even though the DOJ has never actually applied the DMCA in this manner, if the judge looks at the "face" (the text) of the DMCA and finds that it could be construed to criminalize what the professor planned to do, the judge should find that the DMCA has an unconstitutional "chilling effect" on protected academic speech, and deny the DOJ's motion.
* * *

Re:So give a presentation!

[marxmarv]

It was already presented at the 10th USENIX Security Symposium in Washington, D.C., apparently without incident. The RIAA cartel figured out they bit off more than they could chew, and for tactical reasons wants to pretend like this one doesn't exist.

-jhp

Canadian Copyright Law

[memccolm]

The Felten v. RIAA item prodded me into finally taking a look at my own country's (Canada) efforts at amending it's copyright law to comply with the WIPO Copyright Treaty which Canada signed in December 1997.

I thought that Canadian Slashdot readers and Slashdot readers of other nationalities with an interest in the WCT, DMCA or other local equivalent might be interested in the following links:

http://www.pch.gc.ca/culture/cult_ind/wipodp_e.htm

(This is a paper prepared by consultants regarding what changes would need to be made to Canadian copyright law to comply with the WIPO Copyright Treaty.)

I think the section on Aricle 11 will be of particular interest to Slashdot readers. This paragraph caught my eye:

"In the case of devices, it may be difficult to prove contributory infringement in situations where it may not be demonstrated with certainty that such devices will be extensively used in contravention of any rights under copyright law. In addition, with the current wording of article 11 of the Treaty, unless it is very carefully drafted, a provision aimed at the devices used for by-passing technological measures may go beyond our obligations under the Treaty."

http://strategis.ic.gc.ca/SSG/rp01100e.html

"Industry Canada and the Department of Canadian Heritage are seeking comments regarding possible amendments to the Copyright Act with respect to the issues described in these two consultation documents. Canadians are invited to provide their comments by September 15, 2001."

The documents referred to are "Consultation Paper on Digital Copyright Issues" and "Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet"

"The deadline for submissions for both consultation papers has now passed with over 600 submissions received. Due to this overwhelming response, it has not been possible to post all submissions immediately upon receipt. Every attempt will be made to have all submissions posted as soon as possible. For this reason, we have therefore decided to extend the period for reply comments for both papers from October 5, 2001 to October 22, 2001. This should allow adequate time for you to provide your reply comments on the submissions."

http://strategis.ic.gc.ca/SSG/rp01099e.html

(This is the paper "Consultation Paper on Digital Copyright Issues" mentioned above.)

From section 4.2:

"Under these circumstances, the departments question whether it is possible to establish a legal framework which, on the one hand covers virtually all activities that undermine the use of technological measures, but at the same time continues to reflect the policy balance currently set out in the Act. Such a change in the Copyright Act could potentially result in a new right of access, the scope of which goes well beyond any existing right, and would represent a fundamental shift in Canadian copyright policy. It could serve to transform a measure designed for protection into a means of impeding legitimate uses."

"Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?"

As stated above, the deadline for comments on these papers is October 22, 2001, so have your say: http://strategis.ic.gc.ca/SSG/rp01100e.html