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Anonymous User Challenges RIAA Subpoena
Arclightfire writes "First there was the setback of a New England judge throwing out an attempt to uncover the names of students at MIT accused of piracy and now CNet is reporting that a 'Jane Doe' is arguing that the subpoena violates her right to due process." There's also a Reuters story.
The RIAA is not responsible for finding artists. That's the job of the labels. The RIAA is just a group of the top record companies that formed to retain the rights of the companies (read: make sure they get all the money they can while screwing over whoever they need to).
But I do agree, they could definitely be spending money elsewhere. They're trying to fix a bullet hole with a bandaid.
I dunno who it is
but it prolly is fhqwhgads.
Uhh while that may be true you didn't closely read the article. The main argument is that the RIAA's tactics are unconstitutional because they violate due process. Sure she's going to say she didn't do anything wrong but even if she did I think the case has merit on the grounds of the due process argument and that would very much help the public.
The Anti-Blog
Btw, you can go here at the eff to query the subpoenas.
People who think they have to use kazaa to download music will most likely think they must use kazaa to play what they downloaded with it, most likely because they don't know how to get to the files with some other application (like the file browser).
me: "Where are all your downloaded files?
user: "In Kazaa."
There's a button on the toolbar to show you all the files in your shared folder, and it breaks them down by media type, and you can play them from there.
In Sweden it's currently (come Jan 1st most certainly) legal to _download_ but not to _upload_. I.e - using KaZaa is perfectly legal as long as you don't share yourself.
it's in my head
So have can a subpoena *violate* due process of law?
IANAL, but IIRC, the problem is that DMCA allows any "rights holder" to "subpoena" any information that they believe to be related violation of their copyrights, or whatever. Basically, until the DMCA rolled along you had to have a court issue a subpoena or a warrant. Now the RIAA can just cut the judge out of the loop.
Libraries and video rental records require a warrant to retrieve, which requires a judge accept that you're looking for certain information with good cause. That's a huge step up from a simple subpoena, which merely requires a court clerk to stamp.
Well, at least this was a requirement until the patriot act, which allows law enforcement to wade right into your library records if they decide you might be a terrorist.
Knowing what your interests are and what associations you have is constitutionally private, and it is considered legally extremely invasive to find out what you read.
Quick U.S. law primer for citizens.
I agree with your sentiment, i.e., that due process protects citizens from bullying by the government and/or powerful interest groups. However, you are confusing criminal law with civil law. No one is found "innocent" or "guilty" in a civil case, and there is no doctrine of "innocent until proven guilty" in civil law. In civil cases, it's just about whether someone's conduct caused [financial] harm to another party, which must be established only with a preponderance of evidence (as opposed to "beyond a reasonable doubt" as in criminal cases).
This goes for posts above saying the RIAA should have to file complaints with the police vis-a-vis file trading. No. File trading -- and copyright infringement in general -- isn't criminal conduct (yet).
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
1, when you install Kazaa it takes over the association for MP3s.
2, Kazaa has a media area that keeps track of all your media in one place and lets you find and play anything easily.
And the FBI is violating the privacy rights of child pornographers who use the internet to distribute the content by using the same methods.
Don't equate the RIAA's actions of hunting file traders to the FBI's actions hunting kiddie porn freaks. They are COMPLETELY different subjects.
While you may think "Oh, it's illegal, they shouldn't do it. They deserve what they get," they are still not the same. Kiddie porn hurts children. It is physically and psychologically abuse. No one in their right minds wants to see that. It is something that law enforcement should be focusing on intensely.
On the other hand, copywrite infringement does not even come close to that level of crime. If I let someone download a song off me, or I download a song from someone else, who gets hurt? No one. No is suffers physical pain. No one endures a lifetime of psychological pain. The copywrite holders and only the copywrite holders, not artists unless they are the same person whcih is rare nowadays, suffers *potential* loss of sales. There is no guarentee they would have gotten that money. There is no reason for them to expect to get that money. Granted, if you do enjoy their work, you should probably conpensate who people producing it. But in reality no real damage is done.
In the case of these lawsuits, they may not physically hurt anyone, but they violate so many things that it's nearly as bad. For an entity to have the power to arbitrarily hand out subpoenas without doing research other then "that file has the same name as one of our artists!", and completely ignore privacy rights, that is going too far. They are taking people away from they're lives so that they can fight in court over a song, without any evidence besides the user name and the file name. And then, if they are actually found guilty or they simply settle because they can't afford to fight, they are sued for disproportionally large amounts, as we have seen with the recent set of college kids. Where the justice is in this, you'll have to show me, because I'm having a really hard time see it.
Not that I disagree, but "Kazaa Media Desktop" does have media management/player functionality in the program, and their web page hypes those features over the P2P stuff. It's their way of pretending to be a legitimate program.
It's quite possible that a user wanted to use those features without understanding that they were sharing files. Kinda like how people suck their MP3s into iTunes or WMP without really understanding what's going on.
Sorry, but no. Fair use does not give you the right to make copies of music you haven't paid for, even if you delete them later. Fair use is not a "try-before-you-buy" law, it lets you do certain things which copyrighted items you have legally purchased.
just like me handing a tape to my friend to listen to for a week is a legit "fair use" doctrine.
Fair use doesn't even enter into this. If you lend a friend a tape you are not making a copy, and so copyright law has absolutely no bearing. You are simply lending out a physical item, like a library. If you mean making a copy of a tape for a friend, then fair use certainly DOES NOT allow this. It is simply too minor a crime to be prosecutted for, however.
If you'd like to review the fair use doctrine for yourself try here or here. BTW, you are correct in that there is absolutely nothing illegal in using P2P services to share non-copyrighted items, or copyrighted items where you have the owner's permission to share.
When you lose something irreplaceable, you don't mourn for the thing you lost, you mourn for yourself. - Harpo Marx
Ok, so you have a linux server on the net, you are a novice, I hack your server I use it to do bad things, it gets traced back to you, not to me, you get charged. You say " but I diden't know, I must have been hacked, it wasen't me... etc. etc. " the fact that you were "ignorant" of how to properly secure your machine should not make you responsible for the actions of another who hacked your machine. a license to use a computer would be nice but it dosen't exist as of now so this is all pretty much a grey area, I don't think that ancient sayings like "ignorance is no defence" are as clear cut in cyberspace.
Alright, I feel like I am getting trolled, but I couldn't resist.
That saying, to which the above poster was refering to, which is true, is "ignorance of the law is no defense." Which is a hell of a lot different than what you are describing. If you are truly ignorant of a crime being commited, even if it is using your property, then you have a pretty valid defense. Except in cases where the ignorance is willful, basically you see someone digging a hole in your yard at night with a big plastic bag, say about 6 feet long and 3 feet wide, and you simply ignore the situation and don't report it.
So yes, the "ignorance is no defense" saying is just as valid in cyberspace as it is anywhere else, unless you are ignorant of the meaning of that saying. There is nothing magical about cyberspace, all the smae basic rules apply, its just the execution that gets fuzzy.
Necessity is the mother of invention.
Laziness is the father.
From the State University of New York at Albany:
Just because CONGRESS wrote a law giving copyright holders power to ussue a subpoena without going to court, does NOT mean that law created by Congress is constitutional under the 15th and 14th amendments to the Constitution.
Normally a subpoena has to be issued by a court or an attorney in an existing case. Those have to meet standards set out by the courts and the law (as well as attorney rules of professional conduct in states where attorneys can sign subpoenas themselves).
The DMCA changes the balance - letting copyright holders essentially issue a subpoena without oversight. Oversight of the process to prevent carte blanche is _exactly_ what procedural due process is all about.
Giving your neighbor right to search your property for something they think you stole without them having to go to court first to make some adequate showing of the validity of their claim so as to justify invading your rights, violates due process. Giving the RIAA the right to invade your privacy and subpoena your information does to.
This strikes me as a statement made by someone who knows he is going to lose. What he failed to mention was that it was upheld by the DC Circuit Federal Circuit Court of Appeals in Washington, D.C.
Now if you've ever studied the law, you probably know that the circuit court decisions are only considered binding in the circuit in which they were filed. When a Massachusetts court ruled that the subpoenas were invalid in their court system, that means that the RIAA in those cases is now bound by the decisions of the 1st circuit courts, which may not match those of the DC circuit (and probably won't, given that the DC courts are one of the more conservative circuits, and thus more likely to be friendly to the RIAA than the 1st circuit would be....
Now enter Jane doe in Sacramento, CA. California is part of the 9th circuit. The 9th Circuit Court of Appeals is well-known to be one of the most liberal circuits in the country. It also issues the most zany rulings of any circuit, probably largely to force touchy issues to the Supreme Court. (It is the circuit with the most overturned rulings as well, though, so don't assume that a favorable ruling there will necessarily stand.)
The point is that this won't end until the U.S. Supreme Court rules on the issue, and to my knowledge, they have not. This injunction filing in a California court is a very good and potentially effective step towards kicking the abusive parts of the RIAA squarely in the nuts.
Not all of the RIAA is technologically inept, though. I've dealt with parts of the RIAA recently, and they were very professional and courteous. It's too bad their upper management has taken that organization, which performs a lot of very useful services, and corrupted it, co-opting it to make abusive attacks on the public. I daresay that they do not speak for all of the RIAA, much less for all of its members. Here's hoping they get put in their place.
120 character sigs suck. Make it 250.
As they download files, chunks of the files they have already downloaded become available to other users.
Yes, it sucks for users who don't have any content, but once they start downloading files, they have chunks to share with others.
As for getting their first files, they could go to special servers for people with no files. This could automatically be handled by eMule.
More than enough BS
Yes, I said this "Copyright infringement only becomes criminal when it occurs on a massive scale". Downloading $1000+ worth of music in a six month period seems a tad excessive to me. Of course, the FBI does not track file sharers, and gathering the evidence to prove you infringed that much in the necessary time period would be quite difficult. I know the RIAA is trying to use bogus calculations to exaggerate the level of infringement, but hopefully these efforts will be tossed out by the courts. AFAIK, to date all actions against individual file sharers have been civil in nature, not criminal.
When you lose something irreplaceable, you don't mourn for the thing you lost, you mourn for yourself. - Harpo Marx
so how would anyone new join in? by sharing worthless files? or do you want to keep people away and maintain a small clique of 1337 h4x0rz ?
The parent does not quite understand the eMule network. lowid is when a client is behind a firewall or proxy or something and can't accept incoming connections. eMule doesn't have a penalty for not sharing enough files. Although the client will up your maximum download rate if you raise your maximum upload rate.
If you don't understand any of my sayings, come to me in private and I shall take you in my German mouth.
It has to do with the reuse of their product.
In this case, if you owned the rights to your particular type of fruit juice, say, Pickle-Strawberry Blast, your competitors couldn't sell it with the same formula, even if they could make it for a lower price.
This eliminates companies like Microsoft (who have an extremely large amount of money to work with) from undercutting the market - making extremely comparable products at a large loss and driving competitors out of business.
The RIAA owns the rights to these songs, which prevents other people from copying them without paying a fee to the RIAA for it.
While this particular usage (temporary P2P downloading) isn't explicitly stated in the body of law, it could very well be supported by a judge anyway. There are other means by which you can do the same thing---the radio, the music store, the library---and as such, creating that copy does no more harm than walking to the music store, demoing the CD on one of their little machines, and leaving without buying it. In all cases, you have listened to it once, but have not kept a copy.
Generally, in order to obtain damages, there must be harm. A copy made without harm, such as an archival backup copy, cannot be ruled as infringement. Temporary copies of computer programs for execution purposes are not infringement according to the DMCA. Section 512 provides similar protection to ISPs who cache temporary copies of material.
However, what really throws things in the computer user's favor is Chapter 10, subchapter D, section 1008.
Care to explain how a computer doesn't qualify? Or, for that matter, how making a tape for your friend doesn't qualify (since that's the exact thing that this passage of law was meant to protect)? Are we not paying that $8 to the government so we can use that CD burner in that way? Are we not paying extra costs on the media to go back to the copyright holders?It seems to me that this whole thing is a sham. The RIAA and others got laws passed that cost us money to protect their copyrights. Then when people actually start taking advantage of the intended purpose of those laws, they come back and whine that "oh, those laws don't apply here."
I call bullshit.
120 character sigs suck. Make it 250.
Ahhh... But you miss one point that the courts hide and the judges will never tell you about. It's called Jury Nullification. It is part of the whole point of the process to give the people power over the courts, lawmakers, and the government in general. Since the Government does not like losing power, they will not share anything about Jury Nullification with you.
So, what is Jury Nullificatin? It the the process by which, to use your example:
if(lawYouDontAgreeWith==broken) janeDoe!=guilty
If you do not agree with the law, then return an innocent verdict, or side with the defendant in civil court. The whole point is that if you can convince a Jury the law is wrong, you will not be convicted of it. Jury Nullification is the second most powerful tool a citizen has, next to the right to vote. Of course, it requires a Jury trial, and educated Jury members, so yeah, she's pretty much screwed.
Read more about Jury Nullification here.
WWJD?
JWRTFM!
You misunderstand what the LowID in eMule/eDonkey network represents. Leechers come in all flavours, Low ID and High ID. A Low ID signifies that you are behind a firewall and/or cannot accept incoming connections. A High ID is derived from your IP address, as far as I know. Mine changed when I changed my static IP. Obviously, a leecher can have a High ID; leech status is established via the rating numbers that appear in user info.
Now no one likes Low IDs (and if you CAN accept incoming connections you should check your config or try a different server) because somehow the false rumour got around that Low IDs are leeches. They can't upload to as many people (to other Low IDs in other words), but they're not necessarily leeches.
"Hot lesbian witches! It's fucking genius!"
Quoting the Dallas Bar Association web site: "...the subpoena provision of the DMCA allows a third party, such as a copyright owner, to acquire the identity of the subscriber without filing a lawsuit."
As per the DMCA text, section (h)(6) states:
Therefore, we can confidently say that by this text, all laws regarding current subpoena issuance must be followed which are not explicitly defined within the DMCA. The entirety of the text reads as:
Now with this, while it does not require a judge, it requires his clerk (which, btw, is a lawyer hired by the judge to perform minimal tasks within the office of the judge under his authority... this is the case in most judicial offices)... it also says that a sworn statement (in other words, a statement of record, in other words, if the person is lying about the statement, they can be held in contempt) must be submitted.
The DMCA doe