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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."
Does anyone else here find it ironic that the artical is being run by the British Broadcasting Corporation, and not msnbc/reuters/yahoo etc???
"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.
Is it just me, or does anyone else see any similarities between the DMCA and the Sherman Anti-Trust Act? Both are very broad, very indecisive, and ultimately are as powerful or as weak as the body enforcing them.
For example, the Sherman Anti-Trust Act gave the power to the government to break up trusts 9a.k.a.) monopolies, but never specified any regulations for determining what is and is not a monopoly. The DMCA outlaws the use of circumvention devices, but never really nails down exactly what a circumvention device is.
Both laws give God-like power to the person enforcing the law, if they wish to do so. The Sherman Anti-Trust Act allowed President Theodore Roosevelt to break up many monopolies in the early 1900s. The DMCA gives the government the ability to throw you under the jail for infringing on some one's copyright in a minor way, even for "fair use".
The Sherman Anti-Trust Act has long been criticized for its failures by historians and political scientists. Perhaps someday soon they'll see the DMCA in that same light?
Slackware forever. Honestly, what else would you trust when it absolutely positively has to be stable, secure, and easy
"Congress "could have made this statute clearer," he said.
"This statute is not organised as being consistent with the argument for either side."
The judge said he would try to rule quickly, but lawyers on both sides could not estimate when a decision might arrive."
The only way that I can think of that a Judge could rule quickly in a case where the laws are convoluted and unclear is to rule that the law is ambiguous. This would essentially throw the case out of court.
However from the tone of his statement it looks like he is going to make an honest effort to interpret the law. If so I don't see how a fair and speedy decision is possible.
The race isn't always to the swift... but that's the way to bet!
Well, it could have been, but the ruling itself is covered by the DMCA and I can't afford a license. =(
Every year during my review, I just pray the words "slashdot.org" aren't mentioned.
In furhter [sic] cases against the DMCA, this ruling can be used to fight for fair use! Providing the appeals hold up of course...
RTFA (Read the Fsckin' Article!
The judge said he would try to rule quickly, but lawyers on both sides could not estimate when a decision might arrive.
No ruling has been reached yet. The judge doesn't even really seem to be leaning one way or the other.
Slackware forever. Honestly, what else would you trust when it absolutely positively has to be stable, secure, and easy
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.
Actually the Supreme Court's jobs are really two: 1) interpret current laws wrt some current case, and 2) decide whether a current law is constitutional. If the law is not constitutional, it is revoked by the Supreme Court. So if the Supreme Court sees the DMCA as unconstitutional, they can make it no longer exist, essentially. This *is* the system of checks of balances. This prevents Congress from being retarded and passing a law that, for example, infringes on Freedom of Speech (say, like the DMCA is a good example...)
You might want to take a better a look at the way the Judicial branch interacts with the legislative....
The Right Reverend K. Reid Wightman,
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.
"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.
"The judge decided what was already known: The DMCA is unclear. Suddenly, not much happened. Then, nobody made a decision. Finally, nobody knows when somebody will."
Big frickin' deal. Please go back over yesterday's submissions editors. I gave you something much more interesting to post.
Sigs are bad for your health.
Or in this case, what is not thought.
You are being MICROattacked, from various angles, in a SOFT manner.
There once was an organization,
known to geeks by its abbreviation,
that's R-I-double-A,
they'll take freedom away,
as soon as Congress gets that "donation"!
There once was a woman named Rosen,
trying so hard to get her laws in.
She's lobbying Congress
to put an end to Progress,
but more copying is all that she's causin'.
There once was a gent named Valenti,
who sued movie swappers a-plenty.
But one day he died,
only his lawyers cried,
and on Slashdot the cheers were modded +20!
There once was a Senator named Hollings
Whose passion for Disney was apalling,
He accepted their money,
Called Eisner his "honey",
And you should see the Mickey-shaped hottub he's installing!
hoar means a gray hairy mold (as can grow on improperly fermented wine), hair-like frost, or grey hair or fur (yes, that old hoary man ;))
But I think that your point is pretty well taken that certain lawmakers are essentially selling their integrity to Hollywood, the MPAA, and the RIAA..... I think that the access control clauses of the DMCA is a good example...
LedgerSMB: Open source Accounting/ERP
You seem to be implying that copyrights ensure that the people who did the "work" would get paid. This is cerainly not true. In many cases, the people who did the work are long dead. I'd be delighted to work for free after I'm dead. Some are even copyrighting things which have already been placed into the public domain. The whole thing has become a mockery of the original intent.
The LSAT is standardized test you take to get into law school. One of the sections of the test is to measure "critical reasoning". I recently took a practice LSAT and came across this question:
Care to guess the correct answer?
Entrepreneur : (noun), French for "unemployed"
Face the truth, you nerds will never stop the DMCA. Not only is it 100% constitutional, it is also a very good and well crafted law... and it's here to stay. You DMCA violators out there are destroying the economy and America itself with your hacking and online thuggery.
You folks are as bad as those gun crazies who think they should be allowed to own guns. Bzzt! Nope, sorry, only the government needs guns. Anyone else who has them is a criminal. The same goes for your hacking tools and your "p2p" or as I like to call it, Pirate to Pirate.
The responsibility of resolving questions of law would seem to me to certainly include determing which sets of laws to apply to a given case. The supreme court is well within it's pervue to say that a law that the government passed is in direct conflict with a right granted by the constitution. The constitution doesn't explicitly grant them the right to strike down laws passed by the legislature, but they have this right in effect because they can simply rule against the government every time the issue is brought before them. As a timesaver, almost everyone acknowledges this and lets them declare laws unconstitutional.
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.
With only 600 mp3s, in a similar situation it could probably have been almost anyone of us.
Also, at this point the user in question might sill be quite unaware of what is hanging over his head.
With only 600 mp3s, it the user does not even have to be that net savvy as well.
Imagine having your door kicked in at 5am in the morning. 6 cops rushing into your house, your sister is standing there in her nightgown, and your comp gets confiscated. Yourself? You don't even have a clue what it's all about...
A phantastic story? Not really, it happened to a friend of mine... and, it wasn't even in the US, the scene as I described it took place about a year ago in Germany... 200 subscribers from the same ISP got their comps confiscated on hunt for childpornography.
He got his box back eventually, but think about it, how much illegal software is on your HDDs. The more or less accurate percentage on my comp lies around 95%...
How about yours?
OS Wars Volume 5: Recognized as the worlds leading soporific. Warning! Side-effects include headaches and vomiting.
How about having everybody acutally write their congressmen regularly. I am a big fan of the idea that corporations rule this country (the USA) because good people don't write to politicians... In other words evil triumphs when....
Not that all corporations are evil. But some ov the most vocal give everyone else a bad name...
LedgerSMB: Open source Accounting/ERP
I guess it must be the time change from here to BBC-world, right?
Any sufficiently well-organized Government is indistinguishable from bullshit.
I'm not a Consumer, I'm a Citizen! Please keep the two terms straight.
Mod down posts with a "Free Mac Mini/iPod" sig, they're spam!
The judge isn't saying it's pointless. The judge is merely saying that it is poorly worded, and that it will be hard to come to a decision either way in a timely manner.
This doesn't mean that the judge agrees with it or disagrees with it. Just that the judge doesn't like the way it's worded and would find it hard to rule either way while evaluating it the way judges are supposed to evaluate cases.
-Sara
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?
I take it you haven't heard, The Bush administration claims the power to detain "enemy combatants" indefinitely without trial, an effective suspension of Habeas Corpus. All they have to do is label you a terrorist and you disappear in the night never to be heard from again.
The courts haven't been uncritical of this practice and have not exactly been... cooperative...
Now what has been scary has been Ashcrofts earlier statements that they would continue to detain people even if a court ordered them not to. In that case, why not just dispense with the court system and let the FBI and INS take over that role....
Now, you may think this is off-topic, but dispensing with the court system is exactly the path that the RIAA and MPAA are trying to take in this case (RIAA v Verizon) and in lobbying for the bill that gives them the right to use "P2P Warfare."
LedgerSMB: Open source Accounting/ERP
Are corporations also allowed to "sponsor" judges in the US? Seems that might be a quicker way for the RIAA to help clear things up...
Code, Hardware, stuff like that.
the riaa CLAIMS they just want the name so they can send a letter because most people stop when they get a letter. Verizon doesn't want to breach subscriber privacy. So how about Verizon act as a conduit? The RIAA gives Verizon a letter which they then pass on to their customer. Their privacy is preserved but they are warned they are being watched. Everyone wins!
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.
I think the point my be that it is not covered by the mainstream american press. Therefore it is the damn american's filtering the news and trying to control what we think by keeping us uninformed.
BTW, don't you know the status quo? When in doubt, blame Canada!
FoundNews.com - get paid to blog.,
Unlike Britain, news is not disseminated from one source.
That's right, we have no other source of information anywhere at all other than that kindly provided by the Bristish Broadcasting Corporation.
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
I've seen alot of these, "why isn't the USA media reporting this" type comments, and all I can say is try reading a REAL newspaper, like the Wall Street Journal, which not only has the article but also list a RIAAvsVerizon FAQ , a PDF of the Recording Industry Association of America's July 24 motion, and a link to the Electronic Frontier Foundation's court filings page for the case!
The link for this article is here.
And by the way, if you want quality news coverage, typically you've got to pay for it.
Music Companies Try to Force
Verizon to Identify Subscriber
Associated Press
WASHINGTON -- Music companies tried to persuade a judge on Friday to let them obtain names of Internet file-swappers without going to court first, a move that could dictate how copyright holders deal with Internet piracy in the future.
Internet service provider Verizon Communications Inc. is resisting the music industry's subpoena, saying that it could turn Internet providers into a turnstile for piracy suits and put innocent customers at risk.
U.S. District Judge John D. Bates, who heard the case, lamented ambiguities in the Digital Millennium Copyright Act, which was enacted to uphold copyright laws on the Internet while shielding technology companies from direct liability.
Congress "could have made this statute clearer," Judge Bates said. "This statute is not organized as being consistent with the argument for either side." Judge Bates said he would try to rule quickly, but lawyers for both sides had no guess of when a decision might arrive.
The subpoena hearing, which is normally a tame affair, was contentious because the music industry sees it as a test case. If it succeeds, it plans to send reams of cease-and-desist letters to scare file-swappers into taking their collections offline.
Until now, copyright holders have relied on requests sent to Internet providers to take action on their own against suspected pirates. Almost all Internet providers forbid sharing copyrighted material without permission. But that can take a lot of time, and makes copyright holders reliant on Internet providers to enforce the law. Internet providers don't always respond as well or as quickly as music and movie publishers would prefer. They think individual letters from the maker itself might work better.
"Wouldn't that be a lot easier way to let people know that they are in fact not anonymous and there could be consequences?" asked Cary Sherman, the Recording Industry Association of America's general counsel.
Verizon said that since the hundreds of songs up for trade by the anonymous Verizon customer at the center of the case sit on the person's computer rather than Verizon's network, it isn't required to automatically give up the subscriber's name.
"Verizon was a passive conduit at most," said Eric Holder, a former Justice Department prosecutor who represented Verizon. Mr. Holder said the music industry's strategy could create a contentious relationship between Verizon and its customers and put the Internet provider in the position of handing over names to the music companies without a judicial determination of piracy. "We also don't want to be the policeman in this process," he said.
Lawyers for the recording industry rejected Verizon's arguments that it had little obligations in the process. Industry lawyer Donald Verrilli said no type of service provider is exempt from having to identify a potential music pirate, no matter where the songs sit.
Mr. Verrilli also dismissed Verizon's position that its customers have a right to privacy. "You don't have a First Amendment right to steal copyright works," he said.
The judge disagreed with Mr. Verrilli's assumption that the works were stolen. "Here, there's only an allegation of infringement," Judge Bates said.
Judge Bates gave few hints as to how he might rule. He asked many detailed questions of both sides. He called some Verizon positions vague, but showed little patience with other arguments advanced by the music industry and movie studios, which also argued on behalf of music publishers.
Through programs like Kazaa, Morpheus and Gnutella, a person can find virtually any song or movie -- sometimes even before it's released in stores --- and download it for free. On a typical afternoon, about three million people are connected on the Kazaa network and sharing more than 500 million files.
-- Copyright (c) 2002 Associated Press
Updated October 4, 2002 9:43 p.m. EDT
Woopty Doo Basil, what does it all mean?!
DMCA was a very big bill, dealing with many things wholly unrelated to DeCSS (including sui generis IP protection for molded boat hulls), and with some excellent and valuable provisions as well. Most of us are more familiar with the DMCA anticircumvention provisions, and associate that with its great evils. Also relevant are the notice and takedown provisions.
This case, and hence the Judge's comments, deals with neither. It address the specific provisions governing when and under what circumstances an ISP may be required to provide information responsive to a subpoena.
Not a defense of the bill or the Congress -- I just saw enough comments indicating a general misunderstanding of to what the judge was referring to think that these comments might be helpful.