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Judge In RIAA Test Case Calls DMCA Unclear
otisaardvark writes "BBC News has an interesting article about how the judge has chided Congress for being inept and unclear. There are repercussions for both sides; primarily that the initial verdict will take far, far longer."
finally all you anti american spokespeople can realize that not all judges are morons. This judge is in line with what lawyers have been saying for a long time. ..ehhm...
the dmca is pointless. take it to court. see who wins. of course, most people will require a pro bono lawyer... but we need more tests of this law so that it can be ruled unconstitutional.
"Martha Stewart can lick my Scrotum......do i have a scrotum?" -- Sharon Osbourne
"Verizon says it would be unfair to cancel users accounts unless the music companies concerned filed formal legal proceedings that would give the users a chance to fight back.
But the music industry says that would take too long."
That's just super. Now if they could just dispense with this habeas corpus nonsense, they could put all their customers in jail.
. . .that American citizens who're interested in the progress of American case law have to turn to British news corporations to hear it; while all Fox, CNN, MSNBC, etc., can be bothered to report is Bush's latest wag-the-dog blather or Britney Spears' latest bra size.
It's no surprise to me that the media doesn't want the public educated about the ins and outs of the DMCA, but it is disappointing.
!#@%*)anks for hanging up the phone, dear.
In other words, the RIAA and MPAA will get a bone thrown their way, but hopefully common sense will win out over greed and we will have a fair and concise set of rules to abide by.
The Sherman AntiTrust Act harnesses government power and focuses it against corporations to protect voting citizens. The DMCA harnesses government power and focuses it against voting citizens to protect corporations.
You may as well compare the Voting Rights Act with a Jim Crow voting law: yeah, they each used government to determine who could vote; but the latter oppressed Americans, and was therefore morally wrong.
!#@%*)anks for hanging up the phone, dear.
The BBC is reporting that the Judge said the DMCA is ambiguous. This is not a ruling and hasn't set a precedent.
It's typical of the media to blow things out of proportion. And this happens to be one of those things.
Either way, what's really important here is whether or not the RIAA can demand a given user's name, phone number from an ISP *without* any form of a warrant or any form of legal proceeding.
This is something that not even the US government was allowed to do until recent legislation. (The patriot act tends to make things more ambiguous now, and the government can away with a lot more than before, but not as much as the RIAA wants.)
And don't look at that ambiguity as something necessarily good. It could be the nail in the coffin that lets the RIAA and others get away with such reprehensible violations of civil liberty if the courts eventually set the wrong precedents.
I agree that the judicial branch should not be legislating. The real problem, however, is that over the past decade, the legislature basically gave up on law-making. The DMCA is not the only vaguely (i.e. poorly) worded statute to issue from the bowels of Congress. The legislature is quite happy to crank out ambiguous laws under the rubric of "getting things done" and doesn't worry about being called on the carpet by the electorate since they can easily twist the meaning of whatever nonsense became law on their watch (looks at us, we outlawed starving children! woohoo!). The legislature is quite content to leave the heavy lifting to the judiciary since the actual pronouncement of a blank and white judgment tends to get you voted out of office.
If you want to limit judicial activism, make sure your legislature is passing clear and concise legislation. The judicial responsiblity is to interpret the law. The amount of interpretation they get to do is inversely proportional to the legal precision employed by the legislature.
not everyone who supports copyrights, etc, are rich. whould you work for free?
might want to keep that in mind
"One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal," said RIAA lawyer Cary Sherman.
"clearly illegal". This from an industry that says not watching commercials on television is stealing and that making a cassette copy of a CD (that I own) for my car is "tolerated but not legal" behavior.
"If you got a letter from the RIAA saying we know that you're doing this, I'd say there's a good chance that you would stop."
In other words, they want to be able to threaten people with C&D's regardless of whether they have any proof of wrong-doing.
Verizon says it would be unfair to cancel users accounts unless the music companies concerned filed formal legal proceedings that would give the users a chance to fight back.
But the music industry says that would take too long.
Tough shit. It's called due process and is guaranteed by the Constitution. Deal with it.
People's desire to believe they are right is much stronger than their desire to be right.
Or in this case, what is not thought.
You are being MICROattacked, from various angles, in a SOFT manner.
Ah, but there is a sort of balance here. The members of the Supreme Court are appointed by the President, someone elected by the people. Therefore (in theory, and this is all in theory because in practice the Mouse always wins as does whoever has the most money) the Supreme Court is a reflection of the will of the people, because the people's representative appointed the members. And the representatives of the people in the form of Congress voted to permit the President's choice to be a member of the Supreme Court. As aside, that is the main reason I think the representatives have a duty to vote a nominee up or down based on purely political reasons. A senator or representative is a stand in for the people of his or her district; if the people the senator represents are mainly republican, that is good enough to vote against a nomination made by a democrat. That political approval is part of the system of checks and balances. In theory a president can't appoint someone from the far right or the far left, because the nominee must be politically palatable to a majority of the people who approve the nomination.
But I digress. If the Supreme Court oversteps its bounds by making law, then there are two main checks to that overstep. First, congress can pass a law that fits within the court's holdings but that still accomplishes the same end. Remember, sometimes it isn't the end that the Supreme Court objects to, it is the means. And we should all understand why the ends don't justify the means. The second main check to an overreaching court is an amendment to the constitution. If the Supreme Court says that there is no consitutional right to share music, then get an amendment passed to make sharing music a constitutional right.
So there are checks and balances, they just aren't the main ones that people learn in civics class.
This is a typical misunderstanding of Constitutional law.
First, you have all rights. Laws are passed so that your rights are limited, for the greater good of society. For example, murder is obviously a right no one should have, so laws are passed prohibiting you from doing so. Laws limit or take away rights, not grant them.
So saying that you have no fair use rights because there's been no legal document giving them to you is bass-ackwards. The Constitution is not an all inclusive list of rights granted to you, it is a list of rights that cannot be taken away.
I'm not a Consumer, I'm a Citizen! Please keep the two terms straight.
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The DMCA isn't about protecting copyright holders. It's about UNFAIRLY protecting copyright holders, and allowing them certain powers that law enforcement, government officials, military, and citizens don't have.
It is worded ambiguously, gives nearly unlimited power to the holders of copyright, and takes away certain civil liberties that USAians have had virtually since the founding of the country.
I'm all for copyright... The DMCA is overboard, though.
-Sara
I don't know about American law, but in Canada if a law is ruled as too ambiguous of difficult to interpret, it can be "struck down." In some cases, it helps get rid of bad "catch-all" laws that get thrown into place to deal with one problem, and misinterpreted to be used in other cases for which it is not intended.
The flip-side to this is that some laws which are good get tossed because of the same reason. In particular this often seems to be in old laws which don't fully apply to new situations. For awhile we had the child-pornography laws knocked down on a similar basis about interpreting them to material on the internet. I think this case is still going through the wheels, in fact.
Does America have a similar process? Could the DCMA be struck down on the basis of ambiguity or does this just mean that the judge has to sort through what it means himself?
Mostly correct. However, the Constitution does not GRANT rights. It defines the scope of the powers of the government. The rights which are addressed in the Bill of Rights are NOT rights the Constituition gives TO you, they are rights that you already have which the Government is expressly forbidden from taking away FROM you. This is why the First Amendment begins with the words "Congress shall make no law... ", and not "This Constitution grants the People..."
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
how surprisingly refreshing to see a judge doing his damn job, rather than caving to the political winds of whatever the current administration advocates
I hate sigs.
In 1803 they also articulated the doctrine of judicial review which holds that a statute ruled offensive to the Constitution cannot become law. This is not judicial activism; the judge is not "dictating copyright policy in direct opposition to laws passed by Congress." Rather, the judge is raising significant Constitutional questions about the law as passed by Congress. This is well within the role of the judiciary, and the claim of judicial activism here is either a mistake or a red herring.
No offense to the State of Maryland, but the U.S. Constitution provides for suspension of habeas corpus in cases of "in cases of rebellion or invasion."
That said, the illegitimate son of George I has exceeded his constitutional authority in this case.
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The only problem is, Lincoln was a REAL War Time President. The Civil War was legally declared by Congress as set forth by the Constitution.
Actually, the War Between the States (that conflict's official name as designated by the US Congress) was in no way legal or appropriate. In 1865, Lincoln, the first Republican president, used force to deny a "distinctly legal and constitutional secession", to use the wording of a recent Vox Day column.
In addition to recognizing the Southern states' rights under the Constitution to secede, Lincoln violated the Constitution in myriad other ways - anything was permissable so long as it preserved the Union, thhus establishing the precedent that the US government no longer relied or acknowledged the consent of the governed as necessary or proper.
Here is just a partial list of the ways Lincoln savaged the US Constitution:
- He "unilaterally suspended the writ of habeas corpus and eventually ordered the federal army to arrest between 13,000 and 38,000 Northern civilians who were suspected of opposing his administration (this is the range of estimates that exists in published literature). These people were never given any due process at all.
- On May 18, 1864 Lincoln issued an order to General John Dix that read as follows: "You will take possession by military force, of the printing establishments of the New York World and Journal of Commerce . . . and prohibit any further publication thereof . . . you are therefore commanded forthwith to arrest and imprison . . . the editors, proprietors and publishers of aforesaid newspapers." Dix complied, and hundreds of newspapers were censored (see Dean Sprague's Freedom Under Lincoln).
- Lincoln won New York by 7,000 votes in 1864 "with the help of federal bayonets," according to David Donald in Lincoln Reconsidered; all telegraph communication was censored; the railroads were nationalized; new states were created unconstitutionally; and the Tenth Amendment was all but destroyed by the war.
- Even Lincoln's own attorney general, Edward Bates, was of the opinion that Lincoln's orchestration of the secession of western Virginia from the rest of the state was unconstitutional. Article IV, Section 3 of the U.S. Constitution reads: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any state be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress" (emphasis added). West Virginia was unconstitutionally carved out of Virginia, and since it did not even exist as a state, its non-existent legislature could not have consented, as required by the Constitution. A puppet government was established in Alexandria, Virginia, run by Republican Party operatives, which guaranteed a few more electoral votes for Lincoln in the 1864 election.
(Above bullet items snagged from a recent Thomas Dilorenzo column.)Lincoln was a bad president, and a worse man. His actions ensured that the US could never again be free, and enshrined total central control as a fundamental principle of government in the incorporatoin clause of the 14th amendment. The game was over back then, but some yankees are just now figuring out what the rest of us have known for a nearly a century and a half: this goverment has no respect for freedom or rights of any kind.
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