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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."
I thought that companies like verizion were common carriers, and that was exempt from subpoening [SP].
"Martha Stewart can lick my Scrotum......do i have a scrotum?" -- Sharon Osbourne
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?
A lot of websites brag that they don't keep any logs. Can't Verizon do this too? Are they required to track who, what and where on your internet connection?
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.
The quote from verizon's counsel says it best, "It's virtually unprecedented in U.S. law that someone can use a form to find out your identity without any judicial process."
If brevity is the soul of wit, then how does one explain Twitter?
Does our privacy deserve to be gone at the whim of corporate America? Do we really want to allow companies to demand information about consumers without a subpoena ? Are corporations now as powerful as the government? This isn't a question about illegal acts. It's about the limiting power of non-government entities to spy on us.
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.
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.
I am an avid /. reader, and a privacy/YRO advocate, and it saddens me when I realize that 90% of the people I know haven't even HEARD of the DMCA or the Patriot Act or the EFF, or any of it.
It seems to me, that the EFF could be likened to organizations like GreenPeace. Everyone who has ever been on a college campus knows what Green Peace is, but incase you don't they are a group of volunteers that solicit people for supporting their cause - that cause being supporting the environment through legal actions (lobbying, etc).
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* ?
no comment
Your privacy deserves to be gone if you commit an illegal act.
I assume you mean this in a more narrow sense than you stated it. Note that neither of those two Verizon customers has been convicted of anything. They have only been accused. Are you saying anyone accused by corporation of doing something illegal deserves to lose their privacy?
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.
You didn't read the article did you? Verizon is fighting on behalf of all ISPs. Other services would be less able to fight this than Verizon. The only reason these two haven't been handed over to the RIAA is because Verizon objects to the DMCA.
I don't see anyone here crying about the Enron CEO being placed under house arrest with a tracking bracelet, violating his privacy
Did a judge place the Enron CEO under house arrest? Did a judge order the tracking bracelet? Did you read the article?!
Verizon is objecting to the fact that privacy can be pierced without judicial review.
Education is a better safeguard of liberty than a standing army.
Edward Everett (1794 - 1865)
Quite frankly sir, you are a troll.
If you actually think that a private party should be able to acquire a list of subscribers by submitting a form, you need to take a look at US judicial history.
Verizons case here sounds quite good to me. If you want to get a list of customers who bought a book in a bookstore for example, you need a warrant, and it's pretty fucking rare to see even that stand a legal test.
I think the difference here is rather insignificant. You may say that the law was violated all you want, but unless you have proof that a court approves of, you should be SOL.
The interesting thing about this case is that the RIAA walked up to Verizon and demanded the customers name. No subpoena, no court order. They claimed that the DMCA gives them the right to do so and that there is no court order necessary...
So basicaly the cops need a court order, private lobyist groups don't. Somehow this doesn't sound right, does it? IANAL but I think the right thing(tm) to do would have been the RIAA suing John Doe and the court issuing a subpoena for Verizon. If the RIAA wins this case, then there will be a dangerous precedent for copyright holders to get customer data without any sort of oversight from courts.
...when the right of corporations to profit exceeds the right of individuals to privacy. The whole point of due process and search restrictions is that it's more important to protect the privacy of everyone, even if that means letting many criminals go free. Sure, no one's going to argue that MP3 trading of copyrighted works is legal, but neither is going 35 in a 25 zone, or drinking underage, or photocopying sections of books, or what have you. Where the hell are the anti-trust laws and campaign finance reforms when you need them?
I really don't see any way to destroy the RIAA without attacking their profits. The RIAA wants to turn our government into a police state just to ensure it's bottom line is well padded. The scary part of distopias like 1984 is not what is considered illegal, but how strictly it is enforced. When a private organization passes laws to protect its business model, and acts as a law enforcement agency without the consent of the people, I can't see how any attack on them, in any form could be considered immoral. We are confronted with a total hijacking of our government for the sake of profits. Artists be damned, copyrights be damned, I'm sick of this shit. That's why everyone should do everything they can to hurt the RIAA bottom line as much as possible. Buy no cds. Support live performances. Supply your (trustworthy) friends with free mp3's. The US government, especially when covered in republican parasites, will never choose the people over a lucrative corporation. Our only recourse is to not give them a DOLLAR.
But there is another kind of evil that we must fear most... and that is the indifference of good men.
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."
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.
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)
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.
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.
So when ISPs are required to release customer information on open p2p connections and their respective users, and the open source community developes a self organizing, encrypted p2p network, using similar encryption technology to that of online purchasing (credit cards, etc) will the RIAA tackle encryption citing the DMCA? I'd like to see that hold up in a court. If all transmissions must be monitored for piracy, and one can not conceal the source of information, does this mean the RIAA and our ISPs have access to our credit card numbers when purchasing from amazon.com? If the same technology used to encrypt private information were applied tp p2p applications, such that the ISPs can't tell the difference between a credit card number and the Dixie Chick's latest hit, what would the RIAA do?
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
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.
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.