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Verizon Set Back Again in DMCA Subpoena Case
NickV writes "Hope is getting direr for online privacy. The US District Court ruled today that Verizon must hand over the names of the two P2P downloaders. Hopefully Verizon can get a stay on the court order by the Court of Appeals. They have 14 days. Support the EFF! Without a serious lobbying group in DC, privacy will continue to be eroded."
Without a serious lobbying group in DC, privacy will continue to be eroded.
Well, I can think of a number of serious privacy-related lobbying groups, though perhaps none with the power of the RIAA, MPAA, etc. Also, Verizon itself is not bereft of political power. Many universities and other ISPs were hoping that Verizon was big enough to win this.
That being said, I'm not as cynical as the majority here on Slashdot, who believe that the value of dollar is the only way to get things done in government. I would say a bigger problem is ignorance of technological issues among those who pass the laws in the first place.
Care to be asshole buddies?
Now corporations have more power than the cops, since cops need a judicial approval aka warrant to retrieve evidense/information.
Have you ever been to a turkish prison?
of your views on file sharing and its legality, it would seem to me that the larger issue here is the ability of a non-government organization to obtain private information for their own use.
Even if you agree that these people should be brought to justice through the use of this tactic because file sharing is wrong, this sets up a precedent for other situations which may not involve the noble goal capturing file sharers.
I don't expect anyone short of the US Supreme Court to overturn this descision. There's no way to argue this case without turning to the constitutionality of the DMCA and its far-reaching privacy implications, and that's going to have to go to the USSC.
I'm actually looking forward to the DMCA's day in court, though I'm not sure this is the ideal case for it, since it combines too many gray areas of the DMCA with business-vs-privacy with the unconstitutional elements of the DMCA. Still, I expect the only possible outcomes would be a) it's not reviewed by the USSC or b) there's some setback for the DMCA here, large or small....
If it does go that far, the RIAA would be smart to simply drop the case.
The analogy is incorrect. :)
A judge put Kenneth Lay under house arrest.
The RIAA is not a judge.
The problem isn't this specific case, it's that it would allow the RIAA to subpoena ANYONES information. Because there would be no judicial process, they would not have to prove you actually did anything wrong.
Basically, Verizon and all other ISPs are going to have to foot the bill for the RIAA's problem.
Together, we will drive the rats from the tundra.
The DMCA should be unconstitutional anyway. We need to push for a Right to Bear Technology. If theft has been committed, fine, call the cops and report them for theft. Just because a computer is involved doesn't create a requirement for a special law.
One problem is that it sets a precedent where ISPs are *expected* to simply hand over the information they have. It is not a big step for law enforcement officials to use corporations for easy information access, ostensibly for some noteworthy purpose such as "terrorist suspects" or what have you, but more usually for other matters.
Civil liberties are usually eroded by justifiable actions in a specific time or circumstance, and them broadening their usage until they become "normal."
Unity in Diversity
Throughout history, entire industries have come and gone because of changes in technology. Of course, up until now these have always been _legal_ changes, but the fact remains that the RIAA is desperately trying to cling to their old-fashioned model of business. I believe Jerry Holkins of Penny Arcade said it best. "The only people terrorized by peer-to-peer file sharing are vastly potent multinational businesses, gripped by the realization that they sell carriages in a world of bullet trains."
First off I'm not a lawyer. That said, my understanding of the DMCA is that anyone who believes that there is a copyright violation merely needs to fill out a form in order to obtain a supboena. The problem with that is the lack of due process. It doesn't prevent something like a bot sitting on Kazaa sending out automate forms find out personal information from an ISP.
I don't really think that Verizon is protecting our privacy. It's really about the cost involved in processing these requests. I think the privacy protection is a side effect from them not wanting the exposure from every TD&H who want to find out information on an individual
Not to mention, the RIAA has been wrong in the past. Should Verizon bear the brunt of researching these violations? If they do, be prepared for a raise in the price of your DSL service.
Because the DMCA is constructed in such a way that the violators are presumed guilty until proven innocent. Now the RIAA can go directly to Verizon and say "give us this name" and they must do so, without intervention or assistance from a judge.
I do not trust the RIAA with that power. Neither should you.
-- Mojo Tooth : exploring our world as only an idiot can.
Comment removed based on user account deletion
You should RTFA. The issue goes like this:
RIAA: Hey give me the names of these two people
Verizon: Uh, get a court order
RIAA: No, the DMCA says we can get the name of anybody we accuse of stealing without a court order.
Verizon: That sounds unconstitutional. A judge should decide if your case has sufficient merit to pierce their right to privacy.
RIAA: Judge! They won't give us the names of people that the DMCA says we can have without a court order.
Judge: Okay Verizon, do what the DMCA says.
Verizon: I think you should reconsider, Judge. The DMCA is unconstitutional.
Judge: It's the law, I am not changing my decision.
Now verizon has to appeal to a higher court that the DMCA is unconstitutional. (hint: It probably is, and if it looks like this case will cause a constitutionality review by a federal circuit court, RIAA will drop the case and prevent that from happening. Does the name "Felden" ring a bell?)
Education is a better safeguard of liberty than a standing army.
Edward Everett (1794 - 1865)
Doesn't the phone company have to tell law enforcement who a phone number belongs too if asked? Don't they have to provide a list of numbers that that phone number has called if asked?
How is this different?
As a rock-in-roll Physicist once said, No matter where you go, there you are.
Hmm. Good point.
I'm inclined to think they should treat music/software piracy the same as they treat, say, turnstile-jumping in major cities: It's a civil offense punishable by a small (say $500) fine the first time, and it becomes a criminal offense ($5,000 fine, 30 days in the county lockup) the second time around.
I'd REALLY like to hate the RIAA. Anybody who inflicts Britney Spears, Jennifer Lopez, and Creed on innocent civilians deserves mucho public hatred. But, I also know that perhaps 25% of internet backbone traffic is Kazaa/gnutella/whatever, and most of what's being "shared", don't belong to the person sharing it. If you can't enforce the ownership of music, information, data.. then you have no reason to expect yours to be protected either.
I dunno. This is one of those cases where it's "wife-beater vs. town drunk"... You've got a bunch of slime-encrusted sadists bent on monetizing every aspect of american culture, and on the other side you've got a company that wants to protect it's subscribers privacy - so THEY can sell a telemarketing company the fact that you called a cancer support group last month. ("Hello! I'm calling for Bob's discount chemotherapy...")
I don't personally download music from the Internet either. It may not be clearly right, or wrong, but it's not nearly right enough for me to feel comfortable with.
That said, this is still an ugly precedent to set. It's not about this case. It's about anyone with a copyright being able to approach a "clerk of the court" and get all of your personal information.
That's your name, your physical address (which they obviously have to keep to service your installation), and your billing information. All this occurs without a court order or the review of a judge.
Whether the recording industry has a legitimate gripe or not, it is unconscionable to toss aside centuries worth of due process precedent to catch people downloading music.
If you send your daughter off to college and one of her roommates plays around with Kazster, do you really want there to be no legal barriers in place to keep her personal information out of the hands of non-peace officers? If Joe Sleaze Ball can prove the he has a record and they downloaded it, does this give him the right to all their personal information?
It shouldn't. But under this system, it does.
In the past, that information was entrusted only to people that are held very accountable for there actions like judges and peace officers. Lawyers would keep information like that confidential because of the liability they'd be exposed to if it were abused and they were (traceably) the source. If I can sell a crappy record, does that really make me sufficiently accountable to receive the personal information of thousands of cute young college girls?
Perhaps in a perfect world.
The "subpoena" issued to Verizon was a single page document filed with a county clerk. No judge was ever asked to review the subpoena and no evidence has ever been presented that any crime ever occurred.
-- Don't Tase me, bro!
I agree that in the end that trading illegally is wrong, but what the High Court might do is take a look at the Amendment 4 and have a thought otherwise when it comes to the DMCA. What the DMCA is allowing is an unreasonable search and seizure. Here's where it gets tricky. Since the DMCA carries with it criminal charges it should therefore be subject to the highest of standards when it comes to a criminal investigation. If they had come with a warrant to look at logs I am sure Verizon would have complied, but they came when an act that circumvents the 4th Amendment. Indeed this portion of the DMCA should be ruled unconstitutional, it gives police powers to any copyright holder with no check on the authority. What if in the course of an investigation of one of these file traders they were found to be kiddie-pornographers? Could the evidence gathered by the request be used against them in a court of law? Would the entire case be thrown out? Very interesting questions indeed.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I can see a great business model now. We could create a law enforcement company and then we can do all kinds of things that regular cops couldn't do. We could be the Corporate IP Police. It would be a bunch of black suit lawyers and money. Thats all it takes. We can also then create a database of these "known felons" and then sell it creating more revenue. Hell we can even copyright that.
Of course there are legal problems with my idea but continuing to do this could make such a company viable. I can't believe that Congress believes that copyright owners (or should I see middle men) are the life blood of our economy. I thought it was the captains of industry?
Pfah. We need more libertarians, these right/left wing morons are messing everything up.
sri
The main job of the US Government has always been to protect the assets of the wealthy. Not just the US Government, but most governments.
Your privacy deserves to be gone if you commit an illegal act. The only reason Verizon is withholding the names is so all their subscribers. don't migrate to other services in order to prevent from being caught. I don't see anyone here crying about the Enron CEO being placed under house arrest with a tracking bracelet, violating his privacy, but of course it's perfectly OK to steal music from artists. Don't even bother replying that the analogy is incorrect, both people stole.
That's a really stupid, oversimplified opinion.
First off we're (almost) all criminals. Have you ever got a parking ticket? Then you're a criminal. Ever publicly perform "Happy Birthday" without sending in a royalty check?
Second, you clearly didn't RTFA. This case isn't about whether Verizon ever has to turn over the info, it's about what has to be proven and what procedures must be followed for it to happen. The DMCA is attempting to lower these standards.
Third, just because someone accuses you of a criminal, doesn't mean you are one. In America, you are supposed to be assumed innocent until proven guilty. See (2). Certain standards must be met before the police are given the right to search my house.
Fourth, the RIAA is not a law enforcement agency. Why should this information be given directly to them? They've already shown that they want to be a vigilante group. Where's the buffer that protects me from them?
Fifth, downloading mp3s is copyright infringement, not theft.
Finally, even criminals deserve a certain amount of privacy. Quote: "the Enron CEO being placed under house arrest with a tracking bracelet, violating his privacy" Actally, that not really as much a violation of is privacy as it is right right to move around freely. There aren't TV cameras inside his house broadcasting it for everyone to see, and there shouldn't be. Nor is he locked in the stocks in public square, so he obviously has some privacy left, although judging by your comment, you think he should be. That's really fucked up. Also, their had to be court proceedings in order for this to happen. The RIAA wants to be held to a lower standard than this.
Your "Well they're criminals, so fuck 'em!" attitude is really sad. It shows complete disrespect or total lack of understanding of some of the founding principles of the American criminal justice system, as well as general concepts of crime and punishment.
That attitude is them same one that got a lot of people burnt as witches. I could send you off to experience a justice system with fewer protections than ours.
Life is too short to proofread.
This is part of the process called "discovery," where the sides get to collect information about each other for a suit. Technically, a subpoena IS part of a legal process. You generally don't get to serve one unless you already have a case pending in court. That's why it is backed up by the power of the court. If you comply with a subpoena, no problem. If you refuse to comply, you can be found in contempt of court. If you have a problem with the subpoena, you take it to the judge hearing the case.
And that's what happened here. Verizon didn't like the ruling, so they've been appealing it to higher levels in the court system, and I'm assuming that the rest of the case is being continued until this matter is resolved.
This is just a strategic move on the part of the RIAA. They really don't believe that they're going to get any money out of these people. They knew that going in. What they're trying to do here is intimidate both ISPs and users. However, if they think this is going to stop piracy, they're wrong. I can think of a lot of ways to share music without using the Internet, and I'm not the only one.
If they manage to drive file sharing off the Internet, file sharing is just going to pop up in another format. Until they start charging a price only modestly above margin for CDs, this isn't going to end. Has anyone noticed that DVDs are tending to be much cheaper than CDs? And we all know that movies (and DVDs, for that matter) are *much* more expensive to produce than music. Right now, the RIAA is in the middle of learning a very painful lesson about economics and markets. They're lashing out at what they perceive to be the problem, but it's not going to work.
IAAL
IAAL
That was before the Patriot Act. Mutter 'terrorist' while doing anything that was once considered a violation of civil liberties, and you might get away with it.
It's kinda scary, and saddening, and frankly, tiring.
Now I'm going to call up your ISP and they will give me your home address.
I mean all I have to do is accuse anyone I dont like of copyright infringement and suddenly their ISP is forced to give me their information.
How do you like that? Should I call your ISP up right now?
If you use Linux, please help development of Autopac
Maybe, but could a prosecution prove BEYOND A REASONABLE DOUBT that they all did it?
If you were on a jury could you knowingly send innocent people to jail (not all roomantes did it after all)?
All the prosecution has is that each roomate had equal access to the computer, not who was actually there.
What if you run a local network and nat all your roomates with DHCP? If the HD doesnt show anything what can actually be proven?
Very interesting theoritcal (plausible defense) case!
-An American Revolutionary
most people don't understand this. people will see (or not see, based on who owns the media outlet http://www.cjr.org/owners/ ) since it on the news, say to themselves "oh well mp3's are illegal copies anyway" and not even realize that everyone's privacy is at stake, not just people trading on a P2P.
There's presumably a lot of work and evidence to get a court order for such records. If any copyright holder were to demand such records from Verizon without needing a court order, they (Verizon) could quickly be swamped with the number of requests coming in.
Verizon is trying to maintain that the courts should act as a bottleneck to cut down the number of frivilous requests for identity. Otherwise, they'll spend far too much time and money even handling the requests.
They're on our side, but for very different reasons.
Sorry, the only consumers being ripped off are those who let themselves get ripped off.
I generally don't buy CD's because they aren't worth that much money.
This is my choice, it is a free market.
Instead of being a bunch of arrogant shits, can't the RIAA realize that P2P will just die out on it's own if they provide a better way to obtain music. But they havn't done that really, and every step they take against P2P digs them into a deeper and deeper hole. Hell, I for one am never going to buy music again.
What they don't get is that P2P is like a hydra. Cut off one head and 3 more appear and start taking chunks off of you.
Maybe if the RIAA hadn't killed off napster, they might have a fighting chance. But the more they do against P2P, the more people realize that they are just bad people.
Even if these so called music pirates are hurting them, all they're doing is making a martyr of them, which anyone could tell you is a very very bad choice. By making a martyr they create a reason to really, really hate the themselves, and end up screwing themselves over once again.
Who makes the decisions for these people? P2P is made of people. It's not a computer bug or a virus, but millions of people. If those millions started using a RIAA endorsed P2P system, they'd make a lot of money. But instead they alienate them and that's the end of it.
I wonder which will win, the RIAA or P2P. By declaring war on P2P in the way the RIAA has, there has to be a winner and a loser. And I have my bets on P2P, and indie bands.
Plus, I think a lot of people would agree, the music industry would be a lot better without the recording industry telling us what music is hot and what music isn't, and what music we should hear and what music we shouldn't. They need to realize that their ways are over and they need to change.
Aside from the constitutional issues with the DMCA, in an age of wireless LANs, I would suggest that there is increasingly an issue of whether there is probable cause for a search warrant of an access customer's premises and equipment based merely on the tying of allegedly illegal activities to an IP address allocated to that customer at the time that the activities were allegedly committed. For example, I live in an apartment building. In addition to my own wLAN, there are five (count 'em) wLANS, three of which aren't even encrypted (and using such imaginative names as Linksys and default). My point is that, at least in high density areas, there are plenty of wLANS on which third parties can piggyback--and such should be factored into any determination of probable cause.
Why is that such a surprise? What percentage of the American public knows more than next to nothing about computers, networks and all the other techno toys we don't think twice about dealing with. EVERYONE knows that otters (for example) are cute. Therefore, we must save the cute little otters, and all their other furry and feathered brethren.
Tech is NOT sexy, or cute, or as in-your-face obvious as nature and it never will be. Furthermore, most of Greenpeace's stunts are designed around the principal of preventing the slaughter of one animal or another. Killing defenceless creatures == bad, worse if they're cute. Pretty damn simple eh?
Another issue that we (meaning tech enthusiasts/advocates) face is the sheer language barrier, do you realize how hard it is to explain these issues to people when they can't seem to grasp the difference between login and password? Everyone can understand Greenpeace, we learned all their terms in elementary school.
Greenpeace and environmental advocates have allies too, entities that own or oversee great expances of wilderness and preserves, huge advertising campaigns, and efforts directed at educating the children in schools to the dangers of environmental destruction. When exactly was the last time you heard about RIGHTS (cyber or otherwise) being so widely taught and examined in a school system. Our cause needs SERIOUS allies: tech powerhouses, artists, big content producers.
"Why don't we have people on campus letting people know about their freedoms, about the lies spread by the RIAA/MPAA, and about *what can be done to help* ?" We could, there's nothing to stop it, but I don't think it'd help much. There are so many things cluttering up people's lives with worry that something like a tech issue is going to be simply pushed aside by concerns about the economy, the future of the planet and so forth. After all, even tho none of use here would like it, we could just switch off and still live long happy lives.
I still maintain the only victory possible will need tech savvy people elected to all levels of government. But as to how to accomplish that, I could not begin to tell you.
Stupid mods. :(
But to the AC post: The problem, as other have explained ad nausium, is that the subpoenas were not issued by a judge, but by the RIAA. If the RIAA wins this case it means that ANY company can ask for private records about YOU because they think you are violating their copyright. They don't need enough probable cause to convince a judge that you've done anything at all. This opens the system up for a sea of abuse the likes of which we have never seen.
Boobies never hurt anyone. - Sherry Glaser.
Presumably that information would be in a log.