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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?
No, really, I'm serious. ARE YOU REALLY SURPRISED?
The government has been shown to come down on the side of "big business" time and time and time again. Even in it's (in)action against Microsoft, it still benefits not you, not me, not Joe consumer, but Oracle, Sun, and Apple. It's getting to the point where *no one* cares. We've become desensitized to the idea of the government belonging to he who has the cash... You read the paper "Government sides yet again with major corporations" and just shrug it off. "What, a politician has been bought? NOOOO!!" Sarcasm will kill us all.
Yes, the government passed the wiretapping bills the other day. Privacy and freedom are disappearing in the name of "defending democracy and freedom". The Onion's story had it right.
It's mightily convenient. Look at Seattle and the Riots of 1999. There's a groundswell of people who are becoming fed up with what's going on. They don't know why, they can't agree on what to replace what we have with. It's akin to the Revolutions of 1838 (?) in Europe. Protestors without a clear and concise goal, they just know we're pissed off.
The new laws will affect the people who are fighting, in vain, to bring awareness to us all. They will now have to be more careful when planning "political action" (marches, protests, etc), else be labeled "terrorists." The corporations we despise now control the means to watch us. The corporations have gotten military sponsership. Adbusters will be equated to El Quaida. LINUX users will be labeled as "potential internet terrorists". You just watch and see. Ever notice how all these little script kiddies being busted are shown to have had "linux" machines? Linux is being equated to badness. They never mention Windows or Macs in that context, do they? Think.
Yes, the DOJ supporting throwing this out comes as no surprise to me.
I hope they throw out the case. If that doesn't wake you, the so-called last bastions of intellect and free market thinking, nothing will. Yes, you whom Jon Katz has labeled as "The world's future", this is your fight and you're about to lose. You're about to find out that you mean nothing to those with money. How does it feel? Maybe the hippies are on to something. Maybe those left-winger idiots are right. Maybe there is something rotten in this country and it's not the free-market. There is no free-market.
The faster they throw out this case, the closer we'll be to the end. Of what, I don't know. It's time for a change.
Jesus, I need to get off the decaf.
If you were me, you'd be good lookin'. - six string samurai
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.
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.
Ah, legalese...
Subpoena, n.: From the root "sub", below, and the Latin "poena" for male organ or penis. Therefore, "below the penis" or "by the balls."
I can't believe that they're trying to claim that they didn't make a threat. "Threat? Us? No no no, we only expressed concern over his continued well-being..." What a bunch of cheap thugs!
One line blog. I hear that they're called Twitters now.
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.
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"?
I'm glad to see some support like this.
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.
* * *
No, no, no. This is not a sig.