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Felten vs. RIAA Hearing
An incredibly brief review of the case: SDMI created an open challenge to break various forms of technical restrictions they had designed to allow music publishers to control how people use legitimately purchased music. A team led by Felten participated and was mostly successful at breaking them. The team wrote a paper, intending to publish it at a scientific conference. The RIAA/SDMI sent a letter to Felten, his employer, and the conference threatening them with legal action. Private legal discussions and a very public flap broke out. Felten filed a pre-emptive lawsuit, seeking to have his right to publish vindicated without waiting for a suit from the RIAA or SDMI. Immediately afterward, the RIAA publicly and repeatedly withdrew their threat to sue. Eventually the paper was, in fact, published, but the suit has continued.
Or just read through the Slashdot stories.
On to yesterday's hearing. The judge has before him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.
Each side is represented by a half-dozen attorneys. Felten and several of the other plaintiffs are present as well. There are four or five press representatives. Other than that, the courtroom is empty. The first thing the judge does is take care of some routine business - the plaintiffs have requested that a C program, tinywarp.c, be filed under judicial seal with the court. The judge accepts this. He then goes briefly over the case so far, saying that he feels fully briefed by the papers submitted by both sides. He invites the plaintiff's lawyer, Gino Scarselli, to speak and respond to the last set of papers filed by the defense, but cautions him to avoid repeating any of the arguments set forth already in the many papers filed.
Scarselli emphasizes that the plaintiffs are in court for more than just the single threatening letter - he notes that the threat of legal action was considered quite real by the universities, who assigned lawyers to deal with the threat. He notes that Felten's paper was described as a "recipe for circumvention" by the defendants. He says that Felten also fears criminal prosecution due to his desire to publish a paper on SDMI in Scientific American - since Scientific American pays for papers, unlike the conference, this makes publication of the paper a commercial enterprise which might be charged as a criminal violation of the DMCA.
The judge is rather skeptical. He states that the difference between Felten and Sklyarov is "night and day". Sklyarov's actions are clearly criminal to the judge - Felten's actions not at all.
Scarselli and the judge spar a bit over a possible amendment to the complaint, regarding what exactly the plaintiffs were seeking in the lawsuit, and Scarselli retires from battle. Next up is David Kendall for the RIAA, responding to Scarselli.
Kendall starts off by talking about a stipulation (an agreement on facts) that both parties were negotiating over. Apparently both sides had almost been able to reach an agreement, except that the RIAA wanted the agreement to include dismissing the lawsuit and the plaintiffs did not. Kendall moves on to emphasize the argument they are making - that the suit should be dismissed because there is no conflict between the RIAA/SDMI and Felten. There are three reasons why a suit might be dismissed in this fashion - for mootness, because the plaintiffs lack standing to bring the suit, or because the issue isn't ripe. The judge asks Kendall which of the three would apply to this case - Kendall disclaims mootness (because that implies there once was an issue, but no longer), and states that this could be dismissed under either of the other reasons.
Richard Phillips is called to speak for the Department of Justice. Phillips states that his argument has been covered by the papers submitted and sits back down.
At this point only 40 minutes or so has elapsed. Normally, the judge might now take the case for decision, then some time later issue a written decision - instead, he decides (obviously he planned to do this in advance, since he has notes prepared) to render his decision in the case orally and immediately. He notes that he's doing so to save both parties further time and trouble, which indicates that he agrees with the defense that the case should be dismissed.
The judge starts off with the basics, which must have been rather boring to the lawyers involved. Under the Constitution, courts are limited to deciding cases where there is an actual case or controversy. He states flat-out that he sees no case or controversy here, in case anyone in the courtroom missed the hint he's already given.
He now takes a deep breath and begins going through his notes. He recaps the case from the beginning. I'll spare you that, read the documents if you wish.
Finally we get to his analysis. There are two separate issues - is there a case against the private entities? Is there a case against the Federal Government? The judge looks at the private entities first.
Again he discusses the requirement that cases be limited to actual controversies, that judges can't rule on abstract, theoretical, or speculative cases. He uses the word "speculative" approximately 20 times during his opinion, always referring to the plaintiffs' case. He relates a rambling analogy about bank fraud, essentially saying that the plaintiffs were asking for blanket immunity against ever being sued or prosecuted, which was impossible. He covers in great detail the RIAA's retraction of their threatening letter, how they've plainly denied any desire to sue Felten or anyone else over Felten's original paper.
The judge now looks at the First Amendment considerations relating to the suit against the RIAA/SDMI. He notes that the courts are required to avoid Constitutional questions if at all possible. He also notes that according to case law on the subject, there must be a real and immediate threat, that must remain throughout litigation, in order for the courts to consider the Constitutional questions around a non-criminal law (that is, the part of the DMCA that doesn't involve criminal penalties, only the possibility of civil lawsuits). Since the threat has not remained throughout litigation, he sees no Constitutional questions relating to the non-criminal part of the DMCA. He also notes that Plaintiffs do not allege they intend to violate the statute [ed. note: I'm not sure which part of the DMCA the judge was talking about right now - he may have been getting ahead of himself and talking about the criminal penalties.] and thus proceeding further would be "pre-enforcement review", which is not permitted. He closes this section by saying that he finds the Step-Saver and Salvation Army cases (referred to in the briefs submitted by both parties) instructive.
Somewhere during this speech, one of the attorneys for SDMI starts grinning, hugely, as if his team has just won the Super Bowl. He continues grinning and looking over at the attorneys for the plaintiffs until the hearing is over. None of the other attorneys for either side show any particular reaction.
The judge now continues with the suit against the Federal Government for Constitutional violations. He notes that the plaintiffs have not been directly threatened by the Government, nor prosecuted. He contrasts Felten's situation with that of Dmitry Sklyarov - the plaintiffs don't sell their program to the public, they do it for scientific purposes. Again he mentions the Step-Saver case. He quotes from the DMCA extensively. He states that the Government and plaintiffs have no adverse legal interests - that is, there is no possible criminal threat to Felten for doing what he's doing, in the judge's opinion. He notes that in the Sklyarov case there is such an adverse legal interest - obviously, Sklyarov was imprisoned! - and suggests that the Sklyarov case is a better way to get any First Amendment consequences of the DMCA adjudicated by the courts. The plaintiffs are not "manufacturing", according to the judge; nor are they offering their code for sale. The judge segues to what he sees as deficiencies in the plaintiff's legal complaint - they did not assert they planned to fully violate the criminal sections of the DMCA, mainly their assertions were that the Act is unclear and vague. Finally he closes - the plaintiffs must have an "objectively reasonable fear" of prosecution in order for the required legal conflict to exist, and the judge sees no such objectively reasonable fear.
A few more sentences and he's done. He reminds everyone that he may revise his written/final opinion from what he just dictated. He doesn't provide a time-frame for when the written opinion might be expected.
And that's it. My impression is that the most important phrase in the decision is "night and day". Judge Brown saw Sklyarov as a pirate, well-deserving of a long imprisonment term, and Felten as a goodie-two-shoes scientist who didn't have a care in the world. The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all. Both the Justice Department and the RIAA prefer to have their test cases with suitably unsavory defendants - Russian pirates and shady hacker magazines are much preferred over all-American Princeton professors. The RIAA won't make the mistake of sending threat letters to professors again - not until the DMCA issues have been well-settled in the courts, anyway. Some people have criticized the EFF for over-reaching - trying to make a case out of nothing. But to a great extent the civil liberties groups have to play with the hand they're dealt. Felten was legitimately threatened, and even if the RIAA saw their mistake and starting trying to weasel out of it, I can't fault the civil liberties groups for trying to pursue this. They plan to appeal, of course.
All I need to do is write an academic report on how to hack CSS?
Of couse, said report would need to include the source...
Those that love sausage and respect the law should never see either being made.
"the plaintiff's lawyer, Gino Scarselli"
Isn't that the mob guy the FBI keylogged to sniff his password?
Everything must be released for science and research.
So when I release how to let's say hack the judges email account I must preamble it with....
This is purely for scientific and study research.
Is this how a ruling is used in courts? or is it basically the judge blowing gas out his robes and just deciding that the RIAA coffers lubed him quite well?
(I know, in courts the most money wins, not justice or truth.... we have O.J. to thank for showing the country that.)
Do not look at laser with remaining good eye.
While perusing the net, I came across this site on Free Music by a guy named Ram Samudrala
He has listed a 'Free Music Philosophy', which (I think) has merit. I think as a community, there should be a much larger effort on this subject to help further the cause.
I know it will be a long, hard fight (which might be impossible to win, who knows) against the RIAA, but they've done so many things lately that make me hate them to no end (like the proprosal on Ashcroft's Anti-terrorism bill that would allow them to hack into our computers and spy on us), so I would love to see them go down in flames.
Any article about someone suing the RIAA would definitely be of interest to me, and hopefully to many of you.
And they said zombies weren't real!
Crypto-gram 108 especially has some good stuff.
Links: here for good DMCA analysis.
Bruce has called the entertainment industry the single biggest threat to the computer industry, and I think he's right.
The problem here is that it's perfectly legal for large corporations to strong-arm the little guy with threatening letters, and subsequently fail to follow through with the threat.
I talked with a lawyer friend of mine once about this issue, and he remarked on the irony here: you can be arrested and jailed for threatening violence against somebody, but the courts will do nothing to you if you repeatedly threaten to abuse the legal system against somebody. What's a more potent weapon - a fist, or the state (and, by extension, the prison rape it supports)? You decide.
I guess the solution here is the tired old mantra that everyone on Slashdot says but never does: Write your congressmen. Lobby for your rights. Nobody else will stand up for you.
~wally
I think what he probably meant is that one was for commercial gain (Dmitri) and the other was for research (Felton).
Interestingly, as a result of your description of the hearing, I'm much more inclined to side with the judge than I otherwise would have been. IANAL, but: While it's almost certainly true that the RIAA will threaten people like Felten again, I believe the judge was upholding the following principle of the law:
You can't punish people things they haven't yet done.
That is to say, the RIAA was flexing its muscles, but to issue and injunction or try to rule on the DMCA based merely on serving someone a letter would be overextending the reach of the law. It sucks, but you just can't punish people that kind of vague use of the law as intimidation.
We'll just have to hope for better in the next round.
the judges decision seems valid as well. he's right there was no conflict but i understand felten and the university wanting to guard against the future. whats the statute of limitations on the dmca anyway? something i just thought of regarding a federal reaction. considering the recent events (sept 11) and the new definitions of hackers (those that break laws not those that code) as terrorists its possible that (IANAL) that felten could theoretically be charged with cyber terrorism by the feds.
if that were to occur i think the simplest defense is this. 1. gillete makes razor blades.
2. terrorists use razor blades to hijack airplanes
3. gillete is not a terrorist for making razor blades
1a. felten breaks SDMI
2a. bad hackers (terrorist) use SDMI to commit copyright infringement
3a. felten is not a bad hacker (terrorist) for making the tool.
at least thats how i would rule if i was the judge in such a case.
-
It seems that the judge ruled here that since Felten didn't sell the code or make a product based off of it, he's in the free and clear from DMCA and other laws. He also didn't seem concerned with Scientific American selling copies of that code. I'd think this would make a precedent for anyone that wanted to, say, make DVD decryption software for scientific purposes. Or am I missing something here?
Right, so you can't sue someone to get a judgement in a case that hasn't been brought against you.
And, as much as you'd like to, you can't actually find out in advance if what you want to do will be judged legal before you do it. You have to wait until you've actually been sued in order to defend yourself.
That makes sense; otherwise, you'd have McDonalds suing everyone who spills coffee on themselves, alledging that the victem knew the coffee was hot.
Of course, it is a flaw in our government that the legislature creates the laws, and the courts interpret them, but the courts only deal with past events, so there's no way to know what a law means until someone is charged under it. It would be kind of nice to be able to say, "I will do this, but only if it's legal", but that's not possible in the US. This is probably because the court system requires motivated people on both sides and a lot of particulars to consider.
Deciding a case from the bench isn't the norm, but it's definitely not ususual. Long before the oral argument, the parties file extensive written briefs setting forth arguments and case citations, and the Judge (or, more likely, his clerk) has already reviewed those submissions in detail. Many judges believe that oral arguments by the parties don't typically clarify the case beyond what's in the briefs, and thus, decide the case before oral argument even begins. (Some judges even have a full written decision ready before oral argument-- sounds like this judge did.)
The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all.
There's an old lawyer's addage that "easy cases make bad law." (Typical of the profession, there's also an addage that "hard cases make bad law," but let's ignore that one for the moment.) In other words, a judge faced with a situation where one party is clearly right, it's tempting to decide the case favorably to that party, even though the legal reasoning to get there is not the most sound. Here, there is no question that Felten was not subject to any continuing threat from the RIAA, and thus, there was no existing controversy. (The "chilling effect" argument was more interesting, but that goes to show you why easy cases make bad law.)
There's no question that Felten's case would have been far more effective a vehicle to challenge the DMCA if he had gone ahead and published the paper under the RIAA's threat, and then litigated the consequences (if any). But to put one's self in that position requires a martyrdom complex that Felten (and even Sklyrov) doesn't have.
the 2600 case where Hollywood won.
how can these judges not see that the constitution is a growing entity. communication changes and so does the definition of speech.
just because the framers did not see computers or movies at the time does not make Digital/mass media a playground for first amendment abridgments.
I am the Alpha and the Omega-3
Felten's case needs to be heard by a jury of his peers, ie: people that actually understand the technology!
You're using her as bait, Master!
Ok, since there is not - and has never been - any reason to suppress academic research, I openly invite Prof. Felten to study and publish matters realted to the encryption involved in Adobe's E-book reader and in the ways DVD's are protected, and in any other controversial case. After all, he seems to be the only one who has an explicit permission to speak freely on such matters!
In Murphy We Turst
And then withdraw their threat after you hire a laywer. Eventually someone's going to file a SLAPP suit and make it stick. And you could make the argument, when that happens, that if damages don't represent a significant amount of the RIAA's yearly income, they will have no incentive not to continue with their tactics.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
http://www.zdnet.com/zdnn/stories/news/0,4586,5082 221,00.html
Wanted: Loveable hero for copyright battle (excerpt)
Sig: What Happened To The Censorware Project (censorware.org)
So, according to this judge, if I give away the program and not make a profit from it, and the program is designed to defeat DMCA/SDMI/DSS/etc, then it's legal.
Ye gods, what a world we live in.
III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIII
Is this judge smoking bad weed or what?
This is all about the capitalist system trying to to take over the natural world order.
Those who can't deal with change, usually get steam-rolled by it sooner or later. Lead, follow, or get out of the way. There's lots more of truthful cliche sayings out there that DMCA lovers had better listen to.
Frequently Asked Questions about Felten & USENIX v. RIAA Legal Case
Particularly notable:
Sig: What Happened To The Censorware Project (censorware.org)
next time Felton needs to ignore letters and keep going untill the RIAA or the MPAA sues him. then they can not deny that they intended to follow through with the threat since they brought him to court. his case will be much stronger.
I am the Alpha and the Omega-3
-- The_Messenger
I can see how the judge threw out the case aginast RIAA/SMDI party because a lack of evidence that harm would come to the plaintiffs, but I totaly disagree about his reasonings for mootnes on the part of the Justice Dept. Code was not equated with writing/speech, so the sale of the professor's works to Scientific American would have not have been a criminal violation of the DMCA.
The best way to get rid of the DMCA and a bunch of other BS that gets passed through congress is to pass one single law. The law would state: "Machine readable encodings are legaly equivalent to human readable text."
As a direct consequence the DMCA would be in violation of the 1st ammendment. Any patents on software would be voided because text to the best of my knowlage is only copywritable, not patentable. The headache of stupid digital legislation would hopefully be behind us.
bash-2.04$
bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
What Felton should have done is write the RIAA back saying "BLOW ME" and published the paper. This would have forced the RIAA to either sue him or loose thier ability to to sue anyone for the same issue. As it stands, we have lost a chance to get a constitutional ruling on the DMCA and the RIAA has lost nothing. I beleive he and the EFF mishandled this case.
Fascism should more properly be called corporatism, since it is the merger of state and corporate power - Benito Mussoli
"This judge apparently believes that the fact that hundreds of scientists are currently afraid to publish their work and that scientific conferences are relocating overseas isn't a problem," noted Robin Gross, EFF Intellectual Property Attorney.
The real issue here is the definition of moot. In the case of Felten, it is a moot point. He won the battle to publish his findings. Perhaps the EFF hadn't defined their case broadly enough to include the hundreds of scientists who are currently stifled by similar threats. Since I'm not privy to the briefs, thats pure speculation. But remember, judges don't act out of conscience or their own belief system, but rather based on their perceptions of the law and the merits of the case as presented by the lawyers. The judge may well see merit in the case that the lawyers didn't adequately present, but they may not act on that!
It seems prima facie that EFF and Felten have an important case. Lets hope they can cross all their Ts and dot all their Is during the appeal process.
The RIAA is clearly an evil organization. They and their cohorts like Disney and the MPAA even make open statements about how privacy laws are an obstacle to their profits. There's no question that they are evil. But judges have to take cases, at least for the most part, on an action-by-action basis. In this case, the RIAA did something clearly evil (threatening Felten), but they then rectified it. All speculation about their motives aside, they DID rectify it, for whatever reason. Yet after they rectify it, Felten and the EFF try to go after the RIAA in an attempt to get a fully illegal and immoral immunity from prosecution, despite the lack of an ongoing controversy or action on the RIAA's part. If it were the RIAA asking the courts for the right never to be sued by scientific researchers or the EFF, all of us would've said that their actions were illegal, immoral, and just plain ridiculous. But when scientific researchers and the EFF ask the courts for the right never to be seued by the RIAA, we hail it as a wonderful thing and call its rejection a blow against freedom. That's just ridiculous.
I fully believe that the RIAA and the DMCA are evil, and that Felten should not be stopped from publishing his work. But the RIAA deserves their right to sue, just like we have the right to sue them. Felten's attempts to get immunity against being sued by the RIAA is playing dirty and going even below their level, because by asking for a right not to be sued, Felten was trying to take away the RIAA's freedom to sue people that may legitimately wrong them. While some may call this flamebait, I just think that this is one of those instances where we were wrong. This case wasn't a fight for freedom. It was a fight to take away the freedoms of others because we don't like what they're doing and the way they use their rights. Isn't that exactly what the RIAA has been trying to do to us?
Just because your opponent fights dirty doesn't mean that it isn't wrong for you to do the same.
...proceeding further would be "pre-enforcement review", which is not permitted.
This doesn't make any sense to me. No one should EVER be prosecuted under a law that is unconstitutional in nature.
Presumably it's the legislature's responsibility to make sure the laws they pass meet the conditions of constitutionality, but examples like the DMCA demonstrate that they're clearly not doing a very good job of that.
The courts should be reviewing every law that's passed BEFORE it goes into effect. We shouldn't have to tear any Skylarovs away from their families and let them fester in jail while the constitutionality questions surrounding the law they were imprisoned under get hammered out.
-Poot
Does anyone else seem to get a sense that in the not-so-distant future the only people who will be allowed to access, examine, copy, quote, share and distribute information will be teachers?
Can I show a movie to a bunch of strangers? No, that constitutes a "public performance" and I would get fined for it. But can teachers show a movie to their class? Apparently they can.
Can I put an a clip from a TV show on my webpage and point out why it's so particularly funny? No, that's illegal copyright infringement and lawyers would have me take it down. But can teachers put a clip from a TV show on their webserver and ask the class to write a ten page paper on the message? Apparently they can.
Can I disassemble an encryption format and post the result for others to examine and duplicate? No, that's a DMCA violation and the FBI would be after me. But can teachers disassemble an encryption format and post an in-depth analysis of how it works (or doesn't work)? Apparently they can.
I could go on, but it seems to me that in the coming years, I might want to think about moving towards "Education" as an excuse for information exchange.
Don't have a warez group. Have a "copy protection analysis and discussion" group. Don't have a TVRip group. Have a "Pop culture examination and analysis" group.
I mean, who's an authority on something? Who is a teacher except someone who can explain concepts to those who do not yet know them?
If Felten seems to enjoy some magical protection, in the eyes of the court, why can't any other teacher? Why can't I become a teacher and enjoy the same protection?
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Seriously, let's think this thru. RIAA took an action against a specific professor, intending to cow any other educational research of it's illigitimate copy protection methods.
They succeeded in creating terror. Now, even though they "made whole" the professor, no other university or college will permit their researchers from investigating the watermarking techniques, as they will be dragged into court and subjected to aspersions against their institution.
This is what terrorists do. They get people scared it will happen to them.
Thus, RIAA is akin to the Taliban. They try to say "Forget 9-11", but we know they will keep attacking us.
And the judge fails to understand that RIAA should be charged as a terrorist organization threatening the peace and prosperity of American researchers.
-
--- Will in Seattle - What are you doing to fight the War?
Wired published some DeCSS perl code awhile back...
Somewhat related debate at CMU today between Touretzky and Shamos, who testified on opposite sides of the MPAA vs Reimerdes court cases. A CS department page on the debate is up, and it is in progress right now to a packed auditorium. Both of these men are Carnegie Mellon professors, and the debate has been punctuated by slides such as "this slide is illegal" and "you are one click away from destroying the motion picture industry...
Click here to continue"
Would you do it for some scoobie crack?
This DOJ filing seems to be saying "put a label on it that says RESEARCH USE ONLY, keep your nose clean, and you are protected from the DMCA." Which is pretty much the best face you can possibly put on such ill advised legislation.
--Charlie
So RIAA threatens to sue under DCMA if Felton publishes his research. This scares Felton and he doesn't publish. Doesn't appreciate the threat so he sues. RIAA withdraws "threat". Court says, "Well, there is no threat now, so case dismissed."
Here's the implications:
RIAA threatens to sue under DCMA if continues to . gets scared and stops . sues. RIAA withdraws threat. Case dismissed.
"The market alone cannot provide sufficient constraints on corporation's penchant to cause harm." -- Joel Bakan
Basically, law is written in words; it's up to judges to discern their meaning. However, the hordes of lawyers have a captive audience and try to persuade the judge or jury that their interpretation of law and the events surrounding a case is correct. It's all about words and how a lawyer can manipulate those words to make a law mean anything their client wants. Also, it is true that the bigger your coffers, the more you can spend on top-dollar attorneys to work their hardest to make the law work for you. It is never a question about what is morally correct; unless of course, morality was framed into the wording of the law. The day is coming when we will be unable to make copies of anything for fear of corporate repraisal and legal action. Who has the deepest pockets? It's certainly not you and I. Therefore, the corporations are going to make their case to technically illiterate judges and jurors. The corporations are going to lobby and grease the pockets of your congressman or woman in order to keep the DMCA and create more laws like it that destroy the rights of private citizens. Also, all of these legal battles could not be happening at a worse time. With September 11 on every Americans mind, all a lawyer has to do is mention that this is a tool that can be used by terrorists to inflict harm, and the law makers and judges are falling all over themselves to take more of your rights away.
As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.
Behold the Power of Cheese!
The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all. Both the Justice Department and the RIAA prefer to have their test cases with suitably unsavory defendants - Russian pirates and shady hacker magazines are much preferred over all-American Princeton professors.
Did you ever consider that the reason they prefer a test case with Dmitry rather than Felton is because Dmitry broke the law and Felton did not? I said it before the case and I'll say it again. Felton lacks standing and the case was made moot when the RIAA withdrew the threat.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
I guess he missed that whole DeCSS thing.
With this ruling there seems to be a precedent for making DeCSS available again without fear of being legally assraped by the RIAA. Are there any legal-types who want to speculate on this?
-Legion
The RIAA/SDMI camp did threaten Felton and Co. with lawsuits. Just because they withdrew the lawsuits doesn't mean the threats never happened. That's the legal equivalent of pointing a gun at someone to get a desired result - which in itself is illegal.
If they can get away with that, what's to stop me from doing the same thing?
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This is something that really bothers me about this whole situation. It seems the only way to challenge a law is to become a criminal. As I understood it, what Felton was trying to do was get a firm decision from the courts declaring once-and-for-all whether or not publishing information about decryption is grounds for being sued - or threatened with suits! - under the DMCA.
I got the impression that the judge was, in effect, saying "I don't personally think what you were doing was grounds for lawsuit but since the threat was withdrawn I don't have to decide officially. So there. Case dismissed. Come back next time somebody sues you."
It seems that in the US legal system, if you think a law is unconstitutional, the only way to get the courts to decide on it is to break the law and get yourself arrested. If you're only in jail for a year or less (while the courts deliberate and lawyers babble and corporations exchange money and so on) before the courts let you go, then you were right...
Hacker Public Radio is our Friend
I just hope the RIAA has made enough of an enemy (in Felton) that he's up for pushing the issue, i.e., preparing more publications they won't like and publishing them anyway if threatened.
Ooh, a sarcasm detector. Oh, that's a real useful invention.
Only if these judges actually knew what was really going on. They state the primary reason the DeCSS source isnt free speech is due to the fact that it does not need a "human component" to be functional. They make analogies to recipies and blueprints, as follows:
The Appellants vigorously reject the idea that computer code can be regulated according to any different standard than that applicable to pure speech, i.e., speech that lacks a nonspeech component. Although recognizing that code is a series of instructions to a computer, they argue that code is no different, for First Amendment purposes, than blueprints that instruct an engineer or recipes that instruct a cook. See Supplemental Brief for Appellants at 2, 3.27 We disagree. Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet. The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse.
This makes no sense whatsoever! So, if non-humans (computers, machines, robots, etc.) can execute a particular element of free speech without human intervention, the constitution doesnt apply! Commands by any non-human arent covered by free speech.... this is horrible.
Although the immediate threat to Felton et al. might be debatable, can't a judge rule that a law, as written, is unconstitutional WITHOUT there being any person undergoing prosecution under that law?
Otherwise, it looks like we need a new sacrificial lamb to get sued under the DMCA.
She sat at the window watching the evening invade the avenue.
Insufficient evidence of harm, eh?
A C&D letter (a legal threat, essentially) is insufficient?
So, I suppose a Bomb threat poses insufficient evidence of harm as well? If it is *just a threat* and *no on is hurt*...that is insufficient evidence of harm.
A threat, is a threat, is a threat.
So, perhaps we should send a Cease and Desist letter to the RIMPASS's (riaa/mpaa ass.'s, if you missed the joke) telling them to stop breathing...and actually have it sent from the EFF's law offices.
Say that thier lungs are a circumvention device that converts our precious Oxygen into a deadly device called Carbon Dioxide, that could potentially kill a human being and not a facimilie that they seem to be (hey? is a lawyer imitating a human being a copyright violation? Is he/she real or are they Memorex?).
These and other fine synaptic misfires are brought to you by:
Moose (reguards, youse guys)
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
It seems to me that when the judge made the distinction between Felten and Skylarov, he violated one of the tenets of the constitution- equal protection under the law. Laws and punishment should be based on action, not intent. Basically, he ruled that it's legal to give away what is illegal to sell... kinda reminds me of prostitution, incidentally....
Alcohol, Tobacco and Firearms should be the name of a store, not a government agency.
We all know any attempts to fight the DMCA or the RIAA (the product and the producer) has, is and will continue to be a waste of time. Why? Who knows, maybe every judge can be bought, maybe they just dont realise what they're talking about. My point is that this isnt news. We all knew exactly what would and will continue to happend in all similar cases.
Now, im not a US citizen, neither do I plan to visit the US, so im not worried about the DMCA or the RIAA. What I am worried about is that this is sending a message out to other governments and other organizations saying that buying laws is ok. Keeping people in jail for insane reasons is ok. Threatening to slap lawsuits on someone that doesnt obey you 100% is ok. Evidently, it is ok.
I agree with Alan in censoring security changes. He makes a very valid point. The problem isnt wheter someone will slap a lawsuit on you. The problem is wheter someone CAN slap a lawsuit on you.
It seems the only way to challenge a law is to become a criminal.
No, see Roe vs. Wade. In that case, a pregnant woman sued to get a declaratory judgement permitting her to get an abortion. (She later got an abortion in another state, before the ruling, but this has nothing to do with why she had standing). You do not have to break the law to challenge it, but you have to have the intention to break the law.
It seems that in the US legal system, if you think a law is unconstitutional, the only way to get the courts to decide on it is to break the law and get yourself arrested.
No, again, see Roe vs. Wade. Roe did not go to jail.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
i guess an 800 lb guerrilla can threaten people. If felten was threatened to be sued by some yutz on the street, not a big deal. But when a powerful lobby and monopoly threatens someone its a bit different.
In theory, I could setup a Non Profit organization, which provides grants and a place for "Researchers" to pubish thier findings. Say I charge a $1 processing fee, I give a $1 grant for research and provide a Website for publication of the research. I very carefully place a "FOR RESEARCH AND EDUCATIONAL PURPOSES ONLY" disclaimer at the top of every article. Now these Hackers have protection from the DMCA, based on the presedent of this court case.
"Our products just aren't engineered for security,"
-Brian Valentine,VP in charge of MS Windows Development
So it appears that the position of the judge is that Felton received bad legal advice from Princeton University's lawyers.
What is wrong with today? First its smoking fine in Montegmory county maryland, then its santa claus. And now it is our justice system. Where did we go wrong?
That is the first coherent, and best analysis of a legal proceeding I've ever seen on Slashdot!
Thank you very much for bringing some intelligence to reporting of legal matters on Slashdot!
I hope I don't sound like a troll, and please note that I'm playing devil's advocate.
What authoritive figure said that code is a form of speech?
If it is, who says that I have more of a right to tell other people's secrets in the form of source code than I have in the form of writing or speech?
What's this Submit thingy do?
"He notes that the courts are required to avoid Constitutional questions if at all possible."
Okay, I know this is a paraphrase, but correct me if I'm wrong, but aren't the courts supposed to interpret the law to make sure that it holds to the constitution, thus provoking constitutional questions?
Rumor has that Cary Sherman and the RIAA were penalized 15 yards for taunting after the decision.
There is one problem with your statement. Software patents do not (usually) contain machine readable source code, but instead a flow chart and an English description of a particular algorithm. Since processes (or algorithms) are defined as patentable, there would be no impact on software patents by a free speech ruling.
A solution to the problem with music today
that these large corporation and orginization use there right to sue as scare tatcics, and they need to be stopped.
If Felton had not gotten lawyers, do you think they would have gone "oops, you're right Prof, go ahead and publish your work"?
there has to be a reason for corporations to stop sending threatning letters to people just cause they do something the corporation don't like.
If Felton can prove a loss of income(scientific America) I'd love to see him sue for that loss.
The Kruger Dunning explains most post on
It is the Congress job to make laws...
It is the Presidents job to enforce laws...
It is the Coutrs job to interpert laws...
Most of us know about prior restriant, bear with me for a moment and use that as a stepping stone. The court can't block something before it is released, they can only censor it after it has been released.
The court is reactive, not proactive, they can't go out choose the battles themselves, the battles have to be brought to them with good merit. That means they can't look at a law and decide if it is Constitutional unless someone has been injured (sued, imprisoned, blah blah) by that law and the person that is injured is fighting back based on the grounds that the law is unconstitutional.
It may seem off topic but a very relavant example is the War Powers Act that says Congress can Call Back Troops after 60 days if they havn't voted to Declare War, this Act is completly unconstitutional as the constitution it specifically states that the President is the Commander in Chief. If Congress ever tries to call back troops they would be violating the seperation of powers. Yet we still have the War Powers Act and the Supreme Court has never heard a case on it, why? Becuase Congress has never even thought of trying to use the War Powers Act because they know that 30 minutes after they did three dozen lawyers from the Whitehouse would be knocking on the Supreme Courts door screaming that it is unconstitutional.
Let's say that there's a big constitutional question raised in a case, but if the court resolves another question first, the case is over. Under the rule, the court first disposes of the non-constitutional claim, and tries not to reach the constitutional law analysis.
So in the Felten case, the judge rules on justiciability first, and says the case is moot, rather than issuing a ruling on the constitutionality of the challenged portions of the DMCA.
Another example: Someone sues me for patent infringement, and I argue that (1) I didn't infringe, (2) their patent on [foo] is invalid and (3) the patent law as applied to [foo] is unconstitutional because it doesn't "promote the useful arts". Courts will address points (1) and (2) before even considering #3.
Now Felton; a scientist at heart can post the DVD decryption routines in scientific american or whatever magazine that will accept it and post it in a magazine. Magazine can then be read by said coder who incorporates those routines into a dvd decoder. Obviously using what he read in said magazine to produce a product which would then be freely available to whoever wanted it as it was for scientific research.
This judgement is the loop-hole, I no longer feel threatened at all.. Hell this has all been scientific research for me, education and learning and the sharing of knowledge from the get go.
I'd like to thank Felton and the RIAA and Judge whatever his name is for this. I appreciate it.
As I understand it, Skylarov broke no laws either. The software which his company makes and sells is only available in Russia, where such "decoding" software is not illegal. (No DMCA) Dmitry getting arrested for discussing his product in the US is akin to a CA resident getting arrested in New York for describing jaywalking methods, an act which is not a crime in CA...
Expect ANY focus of control to be siezed by someone more interested in control than in what the focus was created to achieve. Try to take this into account when designing new systems. Try to take this into account when predicting the actions of existing systems.
I'm sorry about the Censorware Project, but please consider this when designing your replacement.
I think we've pushed this "anyone can grow up to be president" thing too far.
Rectify it??? Just because things could have been worse doesn't heal the damage already caused. How can they rectify the denial of the ability to publish a paper at one of the more prestigious math conferences? In fact, they didn't even try.
They figured that they didn't have to, and they appear to have been right. Just guess how anyone without a team of lawyers on his own side would have fared!
If the judge isn't corrupt, and if the law is fairly represented, then the Law is corrupt. The stipulations that both sides agree to make that quite clear. (Unless there is some logical slip that I didn't notice.)
When laws are interpreted in this way, the citizenry ceases to honor them, and only obeys them either as a matter of habit, or when they feel that they might get caught. Governments that foster such actions through their own actions should be considered treasonous. Politicians that pass laws which encourage such behavior are in violation of their oaths of office. Anyone who has ever sworn a loyalty oath, and who supports such laws, is in violation of that oath, and should be immediately subjected to the penalties that were promissed.
I think we've pushed this "anyone can grow up to be president" thing too far.
It may seem off topic but a very relavant example is the War Powers Act that says Congress can Call Back Troops after 60 days if they havn't voted to Declare War, this Act is completly unconstitutional as the constitution it specifically states that the President is the Commander in Chief. If Congress ever tries to call back troops they would be violating the seperation of powers.
The Constitution gives Congress the authority to declare war. Doesn't that imply that they can declare that we are not at war as well?
"Before we leave this matter I wish to comment on the theory implied by you, Mr. Weems, when you claimed damage to your client. There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute nor common
law. Neither individuals nor corporations have any right to come in to court and ask that the clock of history be stopped, or turned back."
--Robert A. Heinlein, "Life-line"
Problem is. You look at the stock market and the whole US economy and you'll find that the small cap and med cap companies, (small cap in particular) make up a much larger portion than the big cap ones. (small cap is what under 500 employees?)
So, if the government looks at Dmitry, they should be looking at all the other *little* guys that are also likely to get stepped on. It just *seems* more impressive when you can talk to one man that controls a 300 billion dollar corp instead of 3,000 men and women who collectively control a lot more. I suppose another problem is it's tough to get all 3,000 little guys going the same direction. So, if you're a large corp or government interest, you're much safer if you can pick them apart and eliminate them one at a time.
Draconian laws that can be enforced as "night and day" depending on a judge's whim are a great start in this direction.
This whole "surface scan" problem extends to much of politics (and modern thought on the subject). It *seems* like a good idea to have the government help out and do things for people, until you look closer and realize that everytime the government *does* something, they're doing it with money pulled out of the public pocket (call it stealing or call it protectionism it's at least as bad as pirating music). So, in general, it's a bad deal for the government to do anything.
the supremes would not necessarily look unkindly
l ?c ourt=US&vol=000&invol=U10426&linkurl=http://fairus e.stanford.edu
upon commercial gain as the determinitive factor,
at least for cases on fair use.
the infamous campbell v. acuff-rose parody
dustup points this out:
http://caselaw.lp.findlaw.com/scripts/getcase.p
wherein, the Court slapped down a court of appeals argument positing that commercial gain is only
one of several copyright act section 107 factors.
if code == speech, some code could be parody.
for DeCSS, methinks that the obfuscated versions
in C and perl fit the analogy, as would most
things in touretzky's stego wing at his
gallery of descramblers website.
admittedly, it would be a stretch for
unwatermarked songs to be considered parody,
although whether they undermine or re-inforce
the potential market of the "originals" is
still subject to debate.
maybe behead any congressman who wrote 3 unconstitutional bills for treason against the constitution...
Good Man, before today I was against capital punisment. I guess there are almost 536 I'd like to witness!
In reply to a much earlier post in this thread.
I find it fascinating to think that anyone in this day in age could possibly be bound by something like the formality and wording of laws so much so that they would forego their own common sense and rational processes of thought to call someone a "terrorist" for something like copyright infringement. Unlawful, yes, terrorist? Far cry.... But money speaks unfortunately, something you, and I, and every other sane individual in this and every other country knows all too well.
The more you look at it the more you can see a pattern of self-destruction....it just gets more and more opressive, and companies just keep pushing farther and farther, and in turn more and more gets opened up to the public.
Standards drop, tempers rise, and as bad as the RIAA thinks it is now with people piratingmusic, when it all comes down, where will they be?
I suppose that is a question for the future, maybe it will all find some equallibrium and through some strange turn of events level itself off and all will be merry.
But I kind of doubt it.
In a nutshell, someone using the legal system as a harassment tool. A few states have enacted SLAPP laws and they generally carry some pretty hefty penalties if the person or persons doing the harassing get found guilty.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Roe had an excellent lawyer, and the case, like most famous cases (Take Dred Scott for example) was probably set up.
-----
Score 3? For what? Being wrong, at length? - smirkleton
Now where'd I put that Mindstorms set?
Copyrights, Patents, Trademarks: temporary loans from the Public Domain, not real property ("intellectual" or otherwise)
On the other hand the Supreme Court would also be hamstrung if a senior politician already had 2 strikes and a law that they had voted for was under review. Either way the court decides they'd be accused of taking this into consideration.
The first case would probably be very unlikely, but I'd have said the same thing about the DMCA and Roe v Wade descision.
The basic idea of getting congresspersons to actually have some concern about constitutionality when voting is a good one, but I can't think of a good system to apply it.
Damnit I AM acting my age. I'm 15 in hex!
Like Cato said, there are severe dangers in judicial pre-review of a law.
However, I would love a Congressional rule forcing censure of at least those co-sponsoring, if not also those voting for, a bill later ruled unconstitutional "on its face." Then say we propose a "three strikes" rule to go with that.
But we know that wouldn't happen because it would end grandstanding for brownie points (CDA/COPA) and paying back bribes (DMCA).
They reserved the right to be assholes in the future.
I think this is going to take pure numbers. If enough scholars try to publish blatantly illegal (according to DMCA) papers, and the RIAA/MPAA threatens and backs down on all of them after the damage is done, there will have been enough precedent that a later judge will not be able to ignore.