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: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.

"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"?

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.
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