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DMCA 2, Freedom 0
Politech is featuring this press release from EFF stating Judge Garrett Brown of the Federal District Court in Trenton, New Jersey, threw out the EFF-Felten case challenging the DMCA after less than 25 minutes of debate. DoJ and RIAA both made motions to dismiss the case, which the court granted. We'll have a story about what occurred at the hearing tomorrow. EFF plans to appeal. In addition, 2600 is reporting that they've lost their Appeal in the 2nd Circuit court.
The DMCA is a hassel and should definantelly be considered in the supreme court, why it's still in circut court is far beyound me, I guess EFF is just trying to go through the motions of getting it directly to the supreme court. Why the DoJ would make a motion to dismiss is beyound me though.
The United States division of powers The Legislative Branch is checked by the Judicial Branch THROUGH court rulings, but I guess someone forgot to mention this plain key fact to the DoJ, but wait ... could I be right when I make the assumption that the government is no longer for the people which it represents and more for how well their own pockets can be lined by our fellow extremely wealthy citizens.
Could corperate Kick-Backs be the main case behind why the DMCA was born and is still alive? Of course not, We are Americans in a democracy for the people and by the people with full and equal representation and rights ... *cough* bullshit *cough* ... we're a capitalistic society and I'm ashamed that anything of this nature is going on. I'm also very surprised that like the DECSS the SDMI cracks haven't hit the open source world yet ...
Oh well ... just my opinion I could be wrong.
Ignore the "p2p is theft" trolls, they're just uninformed
What specifically makes him unsympathetic? Unlike many of the DeCSS posters he didn't engage in profanity while describing the MPAA, and never encouraged illegal copying. If you've heard him on the radio you've probably heard he is an articulate and level-headed guy even though his politics are a little to the left of center.
Has it gotten to the point where no one with long hair should expect a fair trial?
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
That, my friend, is a sad thing to say. Patriotism is not about agreeing with your elected officials. Patriotism is not about rolling over while the freedom you know and love is kicked out the window. When freedom is on the line, acting patriotic should be a priority.
I challenge you to be a real patriot. Get out from behind the monitor and write your congressman. No, don't e-mail him/her, they won't read it. Write out long hand your grievances and slap an American flag stamp on the corner. Tell him/her you vote. Tell him/her you know a whole community of people who vote and have similar interests. If you really want to be patriotic, go to D.C. and demand to see your representive/congressman. Raise Hell and be a patriot.
__
LilDebbie
It usually takes quite some time for an issue to percolate up to the Supreme Court. It has to show up at the district and appellate levels for two separate districts. Generally, there also has to be an obvious collision between appellate rulings. The Supremes are loth to get involved with anything, since their authority is largely smoke-and-mirrors. The more a wise man talks, the less wise he is, I guess.
You can rant and rave but let's face it: one of the jobs of the DoJ is to defend the government. They are the government's lawyers. So if you sue against this (or any other) law, it's the DoJ who'll show up opposite you in court. And what's more, they're professionally obligated to do the best defense they can, and this motion falls under that. It would have been irresponsible not to file it.
Right now people like to rag on the US judiciary. But just a few days ago, everyone was aglow (Message Boards are Opions and District Court Denies Injunction against bundlings and DeCSS Injunction reversed).
Here's my point: Like all other institutions, the federal judiciary is not monolithic. Yet we have a lot of good news coming out of there, too... perhaps more than good. At the very least, these rulings show that the pot is beginning to boil -- that the whole IP mess has wormed its way into and throughout the federal court system, and will soon have to be dealt with.
If you really believe you're right, how can that be a bad thing?
The Mongrel Dogs Who Teach
Why didn't the scientists involved just present their research pulicly, and make it a media event? Let the corporate goon squads of the DOJ/FBI prosecute the scientists, in front of the American media, obviously violating their consitutional rights? Or are these scientists willing to go to jail to make a point? Apparently not.
So here I will make an offer: Someone get me a good presentation that violates the DMCA, along with printed handouts, and time at a conference to present it. Inform the media and the DOJ/RIAA/MPAA ahead of time of what I will be dicussing. Have a lawyer ready to represent me. At that time I will pass out printed photocopies of the presentation and give the presentation. I am willing to go to jail over this if someone else is willing to do the preparatory work. If you can get provide the backing, just drop me an email at supabeast AT supabeast DAWT oh-are-gee.
After reading the EFF press release and having read the briefs, I'd just like to point out that things aren't necessarily as bad as they sound (with respect to the Felten case).
First, I haven't seen any links to an actual published decision. So all of this is really rampant speculation. Take it for what it's worth.
It sounds like the Felten case was dismissed for lack of justiciability. The judge probably felt that there simply was no "case or controversy" as required by the Constitution for a federal judge to adjudicate a dispute.
Although the EFF filed for a declaratory judgment (which defines the rights of the party when a dispute is imminent), the judge probably felt that the issue was moot because the RIAA had withdrawn its threats, or was unripe because no actual prosecution took place.
The bottom line is that the Felten decision appears to ultimately be a civil procedure decision of interest mainly to lawyers. It does NOT appear to operate as an adjudication on the merits of the constitutionality of any part of the DMCA. Even if affirmed by the Third Circuit, it sets no binding precedent concerning the DMCA.
Is it unfortunate that the DMCA won't be stricken down immediately? Of course. The wheels of justice, for better or worse, often turn quite slowly. The judiciary doesn't react well to Internet time.
So step back a bit, breathe, and relax before crying chicken little or picking up the flamethrower.
IAAL, but this is not specific legal advice to anyone, just general ruminations about civil procedure.
"Get out from behind the monitor and write your congressman. No, don't e-mail him/her, they won't read it."
YES, THEY WILL. Some Senators have actually pointed out that right now electronic mail is a better way to go (For an example, CLICK HERE.) because of the Anthrax threats on Capitol Hill. I can personally vouch that politicians read email, because I have recieved multiple personal, specific replies to emails I have sent to my representatives. These were well written letters, not just a generic form letter about a topic with a fake signature stamp.
On the topic, Americans need to stop buying into the myth that politicians do not read email. This story is spread by:
1- American media corporations, who want to keep people from contacting representatives. Actually writing a letter and mailing it intimidates some people (Those who do not know how to prepare elegant business letters or have poor handwriting and lack spelling skills.), and is too time-consuming for others. By making sure that the people's thoughts are not heard, companies like AOL and Microsoft make sure that theirs ARE.
2- Old Guard politicians afraid of progress, the guys like Jesse Helms and Strom Thurmond who are afraid of change, especially one that gives a lot of voters a voice in a manner that they do not understand.
Use email to contact politicians. It works. If a politician will not care about your email, chances are that he is enough of an asshole that he would not care about a letter anyway,.And if a politician expresses disdain for email, note it, and make sure he gets voted out!
Sig: What Happened To The Censorware Project (censorware.org)
And what was that quote about encryption? "If encryption is outlawed, only outlaws will have encryption?"
I thought it was: If encryption is outlawed, only gcrqu2 ryfg fgegd vfwtq djxdt.
Seriously, you should either thank your lucky stars that the EFF is doing this, since they're the ONLY people fighting these cases. And the challenges for civil rights were after many years of black people being screwed. Remember slavery? Segregation was pretty deeply entreanched in our society by then.
The DMCA is new. It needs to be challenged NOW, before it gets to be established law. Just because some moron judge didn't even listen to arguments doesn't mean that the EFF shouldn't sue. Ed felten is a legitimate researcher, and he is plenty sympatheic if that is your concern. Eventually, the EFF will get their day in court, try their case, and then we will see.
In the mean time, start litigating this stuff yourself or stop complaining if the only people who have the dollars and time to do it have a small setback.
Oh yeah, that's right. Let's allow the DoJ to arrest Felten and throw him in jail like Skylerov. Let's allow the DoJ to confiscate all of Felten's computers and equipment for years while they stall through the trial process. Let's allow the DoJ to make Felten liable for any infringing action that results from his research. Oh THEN he has a right to bring the matter before a judge?
RIAA says "publish and we'll sue you or worse, we'll tell the FBI your research is a circumvention device" Why is it frivilous for Felten to come before a judge and say "hey, do they really have a case?"
There has got to be some legal basis for preventative measures. Look at trade secret laws. There doesn't even need to be damages...just the mere threat of damages is enough for a judge can issue a restraining order. So why doesn't this work in the other direction? Why can't a judge issue a ruling that says "No, the DMCA doesn't apply to what you are doing Felten, carry on." Why does Felten have to do things the hard way and martyr himself?
Maybe there would be a whole lot less civil disobidience if there was a way for someone to get a ruling before actually breaking the law. Who exactly are you supposed to believe? An unfair law or the judges who interpret it? I read the law and see permission to do something. Big Company reads the same law and sees the exact opposite. Does the FBI listen to my side of the case when Big Company asks them to arrest me? Do they say "oh yeah, good point, you are free to go?" No. Even when Adobe "recanted" Dmitri was still in prison. So then if it's not up to the executive branch, it must be up to the judicial branch. So that is why Felten and the EFF went to court...to ask the judicial branch what this law means. But rather than study it, hear testimony, call experts, and finally make a ruling...the judge ducks the issue.
Oh, and by the way, wtf kind of crack are you smoking to make the statement that judges "get to where they are through being throughly qualified for the position" Judicial appointments are as based on merit as the electoral college is. They are done completely down political and ideological lines...ie picking judges that are gonna vote the way you want them to vote on the issues that matter to your group. But whether is is Democrat or Republician it seems to me there is an appalling pro-business bias in the judges that have been chosen in the last couple decades. Can anyone even remember an anti-business ruling? I'm not talking about one business fighting with another; can anyone think of a single case in the last twenty years where an individual or non-profit group was victorious in an action brought by a large corporation? Are there any success stories?
For crying out loud...ten? twenty? years ago the Supreme Court of the United States rules that Hustler magazine had the right to embarass the hell out of a religious figure because, distasteful as the comments were, they were free speech. What do you think the odds are that the same case would have even made it to the Supreme Court if Hustler had instead embarassed a major corporation?
SDMI hadn't even picked a secure music format. There was *NO* chance of damage or IP theft and still they pissed their pants over Felten's analysis. Why? Because it showed what a ludicrous idea watermarking is. Reactions like this only helps prove that the real intent of the DMCA is not to protect IP or prevent piracy but to prevent the publication or dissemination of any information that embarasses or otherwise injures the reputation of a major corporation and its products.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
I believe that because existing copyright laws already make it illegal to make illegal copies of information, the DMCA is redundant legislation put in place by greedy corporations, whose interests do not match the best interests of the majority of Americans. If things continue the way they are right now, then next thing you know, you won't be allowed to copy your own data (that you create) without written permission from the governor. (Geez, you might not even be able to make data without a license!!)
The entire copyright system has been corrupted over the past century or so, the largest corruption being the increasingly long time the copyright lasts. In my opinion, 20 years is more than enough time for a copyright. After that, you'd better come up with something new to sell or you're an idiot. Just so you know, I spend nearly all of my time writing software for heavy duty industrial processes. It is very difficult work. Really. The blood, sweat and tears I put into this work are approaching a level of ridiculousness. Despite that, I refuse to put any kind of copy protection scheme in my software, even though a single instance of piracy makes me lose thousands of dollars. I simply don't believe in putting deliberate defects in my software. Furthermore, I'd be more than happy with a 20 year copyright. Like I said, by the time the 20 years are up, I'd better have something new to offer. This would keep people busy coming up with new things. I think it's idiotic that someone can come up with a song or book or program and profit off it for the rest of their lives, and for the lives of their great grandchildren, as seemingly happens with the copyright system today.
Think about how much better off we'd all be if people who profit from "nontangible" work are required to keep coming up with new things. An electrician who installs a light switch doesn't charge royalties on each use of that switch for the next 150 years. A mechanic who fixes cars doesn't charge for every mile driven on that car afterwards. Someone who builds skyscrapers doesn't stand at the door and charge people to enter, and then sue people who enter through the back door without paying. If you but a toaster, or a rock, or a screwdriver, or a slab of concrete, it belongs to YOU and you can do with it whatever you want. You can smash it to pieces if you want. It belongs to YOU. Now intangible data is intangible, so I agree that some kind of artificial system needs to be in place so that people can profit from their hard work. But why should someone (even me) come up with something intangible and charge for it through the nose for the next 6,000 years?! That's unfair, and I say that as a person who's career is nontangible work.
An electrician who profits from installing a light switch has to KEEP INSTALLING LIGHT SWITCHES in order to KEEP PROFITING. The same rule applies to any other job. Therefore, it stands to reason that a person who makes software, or songs, or books, or whatever should have to KEEP MAKING whatever they're making in order to KEEP PROFITING. I think that makes sense. If the electrician or [insert name of any other tangible job here] has to do it, so does the person making intangible DATA. Otherwise, you end up with idiots who strike it rich on some stupid work of theirs and spend the rest of their lives doing drugs, getting all kinds of piercings and tatooes and sexually transmitted diseases and stuff, because they just keep profiting off their work FOREVER. That's wrong. They should have to continue coming up with new material or get a real job. There will be less problems in the world!
Therefore, I believe the DMCA is a trash piece of legislation, and it should be repealed. Again, the DMCA is a law in MY favor, but I don't like it. Furthermore, I think that the limit on copyright should be changed to 20 (or at MOST, 30) years. Finally, I think the penalties for copyright infringement should be heavily reduced. It's absolutely ridiculous that a copyright violator can spend more time in prison under the DMCA and other laws than some murderers.
But it probably won't happen. The world is like any other system with problems: Things tend to get worse, not better. I think the whole human race has been going downhill ever since the beginning. Sure, we have technology and stuff but when it comes down to it, people now get punished for listening to music as if they killed people. Of course, that may just be the Brandy Alexanders talking. (1/3 parts each: Chocolate liqueur, Brandy and Cream, in case you're wondering. It's an old drink. Most bartenders have to look it up.)
Oooooooh well.
Guess again.
Check out the Notable First Amendment Cases page at the American Library Association. More specifically, see the case of Broadrick v. Oklahoma, 413 U.S. 601 (1973).
Here is part of Justice Byron R. White's decision:
Litigants, therefore, are permitted to challenge a statute not because their own right of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
In other words, you can preemptively sue the government if it is possible for someone to be silenced by a law.
Ergo Felten was completely in the right.
AlfIn Soviet Russia, sig types you!
RIAA says "publish and we'll sue you or worse, we'll tell the FBI your research is a circumvention device" Why is it frivilous for Felten to come before a judge and say "hey, do they really have a case?"
The motion was not about frivolousness of the underlying questions (whether Felton could publish) and it was not about whether there was a case -- it was about whether there was a controversy.
Federal courts only have jurisdiction under the U.S. Constitution over "cases and controversies," and cannot give advisory opinions. If there is no actual dispute between the parties, the Court must not hear the case.
That was the basis for the motion to dismiss. RIAA said, "Whoops, we were wrong -- we're not going to sue if you publish." So Felton sued for a declaratory judgment.
There are exceptions to the requirement that a case be justiciable, and arguably this was such a case, capable of repetition yet evading review and infringing closely on the limits of the First Amendment by chilling free speech. That was the issue before the Court.
The subtle, totally legal, justiciability question was always hard. On the merits, I think it was very close, particularly absent an elaborate pattern and track record of sending letters to other researchers, though I liked EFF's first amendment "chilling" argument quite a bit. But I could easily see the question going the other way, and surviving an appeal.
But don't get this wrong -- this is not a victory for DMCA on the merits, not by a long shot. It is a procedural loss for the EFF for persisting to bring a case on facts that the RIAA was smart enough to drop. This goes to picking one's battles -- this could have been a good one for the anti-technology regulation movement, but it was not to be. Precisely, by the way, for that reason.