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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...""
How about:
... any disclosure of information gained form (sic)
:)
>
> participating in the Public Challenge would be
> outside of the scope of the activities
> permitted by the Agreement and could subject
> you and you research team to actions under the
> Digital Millennium Copyright Act ("DMCA").
(Extract from a letter to Prof. Felten, on RIAA letterheaded paper, dated April 9 2001).
Is there some specific legal definition of a threat, or does actually threatening someone count?
These sigs are more interesting tha
The DoJ (well, John Ashcroft in his official capacity) is being sued by Felten et al. I'm not certain exactly what they're trying to get into case law, but I'm pretty sure it's the idea that the DMCA does not apply to legitimate scientific researchers doing legitimate scientific research, or something close to it, and to get that precedent established before anyone is prosecuted or sued for DMCA violation.
This reply from the DoJ basically said "we didn't try to prosecute these particular people, so what are they complaining about?"
I don't know whether, under US law, Felten et al are technically allowed to fight the possibility of a prosecution rather than an actual prosecution, but hats off to them if they are. It'll make the world safer for those who come after them. For example, it'll make things much easier for the first researcher who discovers a security flaw in the SSSCA-mandated DRM system.
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Plaintiffs in the present case ask this Court to strike down the Digital Millennium Copyright Act ("DMCA"), or to declare that their conduct, academic research into computer technology, is not prohibited by that statute . Their claim should be dismissed because it is not justiciable
And given that the DMCA specific exceptions from its prohibitions, including:
conduct (1) by a school or library to determine whether to purchase a copyrighted product ; (2) for law enforcement purposes; (3) to achieve interoperability of computer programs; (4) necessary to engage in encryption research; (5) necessary to limit the Internet access of minors; (6) necessary to protect personally identifying information; or (7) necessary to engage in security testing of a computer system. 17 U.S .C. 1201 (d) -(j).
It seems that any research by Felten & Co. would be covered under (3), (4), (6), and (7). Thus, isn't the DoJ's motion for dimissial justified?
Isn't this just a motion that was filed? It still remains to be seen whether the case will be dismissed by the court. We can only hope it won't be....
Hum...
From an administration that is trying to let Microsoft off as much as possible and to try and take as many personal rights as possible, you would not expect different. That is, they are trying to make sure that nobody can challenge the taking of these rights.
Hopeflly, the courts will protect US now from the administration and congress
This is a good observation. If we want to nail the RIAA, we should prosecute under RICO. It's made for this kind of slippery behavior.
The government did something really fucking stupid!?
You're surprised? Look, here's how it works: the DoJ is charged with defending the Federal Government, especially including laws passed by Congress (whether they like them or not). The DMCA is a law passed by Congress (hopefully it will be ruled unconstitutional, but that hasn't happened yet). The United States is a named defendant in Prof. Felton's (et al) lawsuit; the action challenges the constitutionality of the DMCA.
Therefore, the DoJ is _obligated_ to present a government defense. This is just the normal operation of Constitutional Law proceedings and the functioning of necessarily adversarial litigation. The legal process grinds very slowly, but in the end, it grinds very fine. It mostly gets things right, eventually (but the process takes years, if not decades or even generations). Maybe once in each generation sits a really wise Supreme Court.
This motion in question is a mere skirmish in just one battle that is itself just a small part of a much larger war to retain the Liberty and associated freedoms intended by the framers of the Constitution, all in the face of concerted attacks by monied corporations working through soft-money wholesale bribery of politicians to subvert public rights for their own monopoly-seeking interests. It's not just illegal corruption (for that connotes unusual practices) but it is, rather, full-scale rotten-to-the-core corruption of the entire political system whereby politicians get financed to buy public offices and then pay off their well-healed "friends" (many are big media) that purchased the media time that bought their elections. So very cozy, isn't it? However, that's how it works here in the U.S. of A. lately, like it or not. It'll take real courage and perhaps bloodshed to change this.
Is it just me or doesn't this look like the greatest victory possible. If the DOJ's motion
succeeds, and Felten publishes the results and
then the RIAA asks the DOJ to prosecute his team under the DMCA, the DOJ and Asscop end up with seious egg on their faces, because the DOJ established that Felten was immune from persecution under the DMCA. Truly brilliant actually.
You guys are idiots. Since when is the position of attorney general reserved for leftist pinkos only?
Why is it that you believe so strongly in freedom, then proceed to try to restrict the freedoms of others; including that freedom to make business or personal decisions based on whatever criteria one wishes?
As for the hate crimes, why should any segment of the population, either homosexuals, blacks, hispanics, jews, christians or penguins deserve any special protections under the law. All crimes are hate crimes. Not just those directed at people because they belong to a certain group.
The so-called "clean water protections" were woefully inadequate and ill-structured and it has been shown any number of times that the pitiful efforts to roll back greenhouse gas emissions will do nothing to stop the purported global warming.
Why on earth should the Government be funding the National Endowment for the Arts? Why should my money be forced to pay for something that a very small portion of the population appreciates?
This guy gets to be attorney general because the representatives of the majority of Americans decided he was suitable for the job.
Get over it.
Just cuz you ain't paranoid, doesn't mean they're not after you.
I think the major think which precipitataed the DMCA and other crazy laws/rulings is the fundamental misunderstanding of the digital community by lawmakers.
Senator X thinks: wow, the interent is used to do a lot of bad things, therefore its bad -> Lets "fix it." They don't understand that things like the DMCA violate the very spirit of innovation which brough about the internet and the Tech Boom.
In addition Senator Y may not have an opinion on the DMCA(or similar legislation) but when he recieves a fat check that says "DMCA-Yes" on the back from the RIAA(or similar) what is he going to vote for? The only thing that we can possibly do is, for the sort-term, write to our representative : 1,000 letters saying "DMCA-NO" may just override the RIAAs check (at least for somewhat honest senators(there are still a few right?)) In the long term it has to be made an issue: this is far more difficult because the avereage person will say that reverse enginerring is bad because itstealing others ideas, etc... the average person needs to be made aware of the negative effects of legistation such as the DMCA.
NeuTurbo
--------
Until a judge says that, however, there is still a case. The judge may concern the DoJ's brief and drop the case, or may decide that there is very much merit to the 'bullying' that the case involves, and allows it to go forward.
IMO, a reasonable judge would see that there's enough questionable activities, either by DMCA or by RIAA, that allowing facts to be heard and arguements made would be more beneficial to defining the law better(*) than to allow it to go uncontested.
(*) 'defining the law' may be as to set a precident on when or where DMCA is applicable, or to possible call into question it's constitutionality. In other words, just because the judge takes the case does not necessarily mean a favorable outcome for the /.-mentality.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Not all crimes are hate crimes. Most crimes committed are done for a tangible benefit of the committer of the crime. For example, a bank robber robs a bank for the tangible benefit of the money achieved. OTOH, people who commit hate crimes have no tangible benefit to themselves; the sole purpose of a hate crime is to denigrate the target of the action.
The so-called "clean water protections" were woefully inadequate and ill-structured and it has been shown any number of times that the pitiful efforts to roll back greenhouse gas emissions will do nothing to stop the purported global warming.
"any number of times" == 0. You are confusing the statement of "inconclusive evidence" with "no effect". There are any number of studies which conclude that there is insufficient evidence to show that cleaning up the air supply will decrease the emission of greenhouse gases. However, you don't need to live in a densely populated, industrial area to know that polluted air causes health problems.
Why on earth should the Government be funding the National Endowment for the Arts? Why should my money be forced to pay for something that a very small portion of the population appreciates?
You're so right. While we're decreasing the budget for the NEA, let's cut out all those subsidies for tobacco farmers. After all, most Americans don't smoke. And let's kill those bailouts for the airline industry. After all, in the wake of the terrorist attacks, most Americans don't fly. And let's cut out funding for the CDC and NIH while we're at it -- most Americans aren't threatened by public health problems; it's just a minority, right? And let's start charging ranchers market prices for grazing on public lands; ranchers are a minority in this country.
If you let me know where you live, I'm sure I could come up with some more specific examples that benefit your community, but don't benefit the majority of Americans. Shall we start cutting all those programs, too?
This guy gets to be attorney general because the representatives of the majority of Americans decided he was suitable for the job.
Get real! Congress pays more attention to corporate checks than they do to the voters who have a choice between Tweedledee and Tweedledum.
Well, it's the DOJ's job to defend laws that people attack. That's just the way government works. If a corporation sued the government the DOJ would still defend the government.
Now, passing the DMCA was due to business pressure on congress (I'm sure). But to argue that the DOJ is in the lap of big business because they are defending existing laws is absurd.
Jack Valenti and the MPAA are to technology as the Boston strangler is to the woman home alone
You do x. Someone threatens to apply law Y against you (which has nothing to do with x, or cryptically permits x).
Do you sit there and spend your money against a frivolous case in an environment where (a) a good lawyer could convincingly argue that Y does apply, (b) the judiciary is perceived as 'bought', (c) the general public does not understand that Y does not apply because they understand neither x, nor Y.
Even if you win, it might cost you big time. Financially, you could still lose. The only people who would fight that fight would do so out of principle (and such people are stronger than I and I salute them).
In such cases, it strikes me that setting a precendent that such a suit is, indeed, frivolous, and without merit, would be a good idea. Isn't that what case law is all about, establishing precedents to make it easier to prosecute or defend similar cases in the future?
So, if someone threatens to sue you (which, IIRC (and IANAL), is illegal in Canada, at least (threatening to sue, that is -- either sue or don't)), it should be possible to sue for having made a groundless legal threat.
Now, that's not why Felten, et. al. are suing (they're arguing a first amendment issue and not a threat of a nuisance suit), so perhaps their case has no merit on a technicality (suing for the wrong reason), but there should be a legal mechanism for fighting back against legally groundless legal bullying -- IOW, if you threaten to sue me, I should be free to act as if you had, and defend that your suit would have been groundless, and so your threat was harassment.
This strikes me as an acceptable balance between "threatening" to sue but avoiding an all-out suit (so as to not clog the courts) when you're sure you'd have a case, and fighing such "legal bullying" the ability to so threaten would encourage.
You could've hired me.
Felten needs to go present his work publicy, RIGHT NOW. If the judge thinks that this case is too preemptive, Felten should announce that he will be presenting his case at a public place in a major city sometime in the next few days, and make sure to get the time and place listed on /. so that people attened. Felten should also contact the RIAA and the press, so that they can be there. At that point the RIAA will either have the FBI arrest Felten and press charges, at which point the case can proceed, or they can back off, showing that even they do not really have the balls to push the DMCA, giving anti-DMCA forces more ammunition.
If this case is concluded first, and positively for the EFF, that would give extra ammo to the Dmitry Skylov case. Also, the Feldon case could lead to a Supreme Court review of the DMCA, which could either limit or overthrow the law, sending the Russian Programmer home.
No doubt the goverment would rather focus on Skylov, since they have a stronger case. The Feldon case has much more popular sympathy, since its a professor of a well known school. It's hard trying to convince the public of Dmitry's innocence, since all they see is a Russian hacker who broke the law.
Peace, or Not?
I also have not yet read the brief, but I expect the mootness argument to be hanging in the wings given its Article III roots and the apparent desire of the RIAA to pull out every trick in the bag to stop to what appears to be the strongest (and possibly successful) attempt to invalidate the RIAA's favorite statute. Here's rooting for Prof. Felten.
Laws affecting technology will always be bad until enough techies become lawyers.
I'm not going away anytime soon, although I'm sure I'll be posting less often when my workload picks up. (I'm in about a 4-week slump which I hope is temporary.) Just as I wish more lawyers were technically literate, I wish more technology professionals were legally literate. The latter, perhaps I can do something about. The quality of debate (and, incidentally, the potential political influence of those participating) is improved thereby.
Now, about your random testing proposal for the criminal justice system. I suspect, once you think about it, you'll realize you don't really mean it. Your proposal would subject no less than 4000 human beings to potential criminal charges and penal consequences, at "random," for the sake of "testing." I'm sure you'll acknowledge that, at least in this respect, human beings are qualitatively *different* from mere data input. Data can be thrashed, crashed, screwed, blued and tattooed for testing purposes, because it doesn't suffer, wince, or file lawsuits.
And there you have the principal problem with systems analysis of human-relationship systems such as our legal system. They are not objectively testable without violating the moral code that makes us want to test them in the first place. If you wonder why "The Law" seems less consistent and rational than C++ code, consider that there is no morally acceptable human counterpart to the debugger.
I agree, though, that the criminal justice system penalizes the "poor and the black" (and brown, and even not-quite-white) disproportionately. There are many proposals for how to remedy this situation. I think monitoring of racial profiling, and availability of DNA testing to convicts/suspects, would be good steps toward equity. However, I think that the legal system only reflects and concentrates the prejudices of society at large, so I think a more systemic purging is necessary to correct this problem.
(P.S. - I'm posting without the "bonus" because I'm veering a bit off-topic.)
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No, no, no. This is not a sig.