Slashdot Mirror
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him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.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.
Those that love sausage and respect the law should never see either being made.
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.
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.
I think what he probably meant is that one was for commercial gain (Dmitri) and the other was for research (Felton).
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
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
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)
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
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
Its noticable that Dr. Touretzky has been threatened by the MPA, but the threat has neither been withdrawn nor acted upon (AFAIK). It seems to me that the EFF might have used that in the Felten case as evidence that the threat against Felten was not an isolated case, and the withdrawal of the threat against Felten was an attempt to avoid clarification of the law.
Paul.
You are lost in a twisty maze of little standards, all different.
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.
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
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 courts should be reviewing every law that's passed BEFORE it goes into effect.
...and people complain about crowded courts now.
For better or worse, there's a presumption that Congress passes laws that are constitutional. As much as we might be upset by "bad" laws, do you really want to clog up the courts that way?
Who would be the party in interest? If you REQUIRE court review, you'll have to pay someone. Private attorneys? Sign me up, sounds like subsidies for bored litigators. Note that you can't use the Justice Department, since they're the ones that would have to defend the law.
Who's gonna stand up and challenge (in court) the constitutionality of laws establishing the George W. Bush presidential library, or national broccoli month?
While there are often doozies (like the DMCA, or the law outlawing flag burning) that are (arguably) unconstitutional "on their face", many of the laws that are ruled unconstitutional are ruled so because they're unconstitutional "as applied" to a particular plaintiff.
There's also that little troubling thing in the Constitution about Federal courts only having jurisdiction over actual "cases and controversies", but enough ink is being spilled over that issue with regard to the Felten case.
Your rant makes for a nice position on talk radio or for fist-pounding on the table, but if you think things through, it's nearly impossible to implement.
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
So it appears that the position of the judge is that Felton received bad legal advice from Princeton University's lawyers.
Touretzsky took part in a debate this afternoon about the DMCA in which one of his slides was the DCSS code and the caption was "It is illegal to show this slide." :)
--------
It's OK to be social, just don't tell anyone about it.
Actually, and in other words, if somebody ever creates a robot which can read a blueprint and construct the device in question, all such blueprints become, retroactively, unprotected speech.
Vintage computer games and RPG books available. Email me if you're interested.
In Roe vs. Wade, the Supreme Court heard arguments and ruled although the original case was moot (Roe wasn't pregnant anymore) long before it reached the SC. But there were several special circumstances. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. The SC understood that since it takes more than 9 months to get through the various lower courts, any particular woman's case was bound to be moot before they heard it. So they considered Roe as a representative of a class -- there was always _someone_ seeking an abortion. In addition, they consolidated Roe's case with that of Hallford, a doctor who would do more abortions if they were legal and hence didn't lose his standing in 9 months...
The SC doesn't want to decide hypothetical cases for two very good reasons. One is that most of the time the peculiar circumstances of a real case matter more than the abstract principles, so there is a likelyhood that a decision issued on a hypothetical case is likely to be too disconnected from reality. And the other thing is that historically many of the SC's worst rulings came from spewing about abstract principles that went far beyond the facts of the case at hand -- Dred Scott for instance.
On the other hand, the lack of a way to verify in advance that publishing a certain item is protected by the 1st amendment certainly does have a chilling effect on free speech... So is the prospect of having to pay lawyers a few $100K to defend you even when there is little doubt you'll win. Or maybe the problem isn't that asserting your constitutional rights is expensive and risky, but that writing and voting for unconstitutional laws poses no risk or expense for the legislators. Now, if we could have the sponsors of unconstitutional laws liable to pay the defense and other costs, and maybe behead any congressman who wrote 3 unconstitutional bills for treason against the constitution... But I think it would be a little hard to get that amendment through congress or state legislatures.