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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?
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.
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:
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.