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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 most important issue is that if you are innocent, if the RIAA has screwed up, it is critical that individuals have the ability to challenge the subpoenas before their identifies are compromised," said Fred von Lohmann, an EFF attorney.
.02
Definitly. Problem here is this: She also "participated" in the Kazaa file-swapping community but tried to prevent other people from accessing files on her computer, the documents state. So, while she was using it as a media player (*cough*) she was also "participating" (whatever that means). Just because she "tried to block it" doesn't excuse her. This isn't going to help the public much.
Just my worthless
"The courts have already ruled that you're not anonymous when you're publicly distributing music online," said Matt Oppenheim, senior vice president at the RIAA. "Her lawyers are trying to obtain a free pass to download or upload music online illegally. Their arguments have already been addressed by federal court and been rejected."
Seems to me like this is an entirely different set of issues. As far as I know, the courts never addressed this on an individual, MY-rights-are-violated level. Surely her privacy rights are a lot stonger when asserted on her own behalf than when an ISP says they shouldn't have to disclose identities because that might be bad for whoever that might be that isn't represented in this hearing.
So, while she was using it as a media player (*cough*) she was also "participating" (whatever that means)
In her defense, I have gone to uninstall Kazaa on people's machines, and there are some that really do believe that its the only way to listen to their MP3's. I often have to explain to them that there are many other players out there that work better! The vast majority of casual users out there really just don't know any better, and that fact may have a major impact on these subpoenas. How do you prove that someone is computer literate enough to know they were doing something wrong?
Sound waves should be free!
That doesn't make sense because subpoena is part of the due process of law. So have can a subpoena *violate* due process of law? It is the other way around. If there was no subpoena, that would violate the right to due process of law.
-Brent
Kids keep pitching tents in their pants hoping that some case like this will all of a sudden make downloading mp3z and 0-day warezezz perfectly legal. Of course that will never happen.
This is challenging the subpoena process, which a superior court has already upheld. So, most likely, nothing will come of it.
I'd like to see the case where someone is subpoena'd by the RIAA, and proves in court that they'd never offered so much as one copyrighted work for download. Like it was all fan fiction and independent music or whatever. Headlines blazing "music industry sues guy for doing nothing", RIAA lawyers with egg on their face.
I don't have a problem with them targetting people who are legitimately harming their business. But I have a problem with automated spiders flagging people to be sued or harassed. Automatic threat letters being sent to some person with the unfortunate name of Britney Spears, stuff like that.
They don't do a lot of fact checking before they launch these suits, and do absolutely none at all to send a C&D order. That's wrong and should be punished.
Anyways.
I love iPods mod me up.
I don't need no instructions to know how to rock!!!!
I've said it before and I'll say it again.
All she has to do is win, and that gives legal grounds for everyone else of the 1000 unfortunate souls to follow suit.
So, RIAA, when you can't sue the network or the users, what exactly are you going to do, will you finally ADAPT? Or will you try and buy/strongarm your way into another tactic to hang on to your ancient business model?
Survival of the fittest in action, unless the RIAA trims the fat, they're on their way out.
Let's get one thing perfectly clear, I did not vote for George W Bush, and I do not endorse what he does or says.
"
Since the goverment has no control over our country anymore, why should we be obliged to pay taxes and adhere to its laws?
Our legal system is set up so that it is very difficult for the police (a government employee) to get a warrant for a search, but the RIAA (a private company) can do it at will?
If there is some crime here, then I belive that the govenment should prosecute to the fullest extent of the law.
Do banks supoena bank robbers?
Keep in mind that I have never used Kazaa or similar service, and do not belive in the whole "sharing" thing. But I refuse to have corporations coming into my private life for something the feel is suspicious. Can I get a supoena to look at RIAA's records for price fixing and their business practice because I don't like it?
This is not a slope that I want to see our govenment go down. If so, then they have relinquished all power over its people, and that will lead to anarchy and/or revolution.
Instead of Media Player and WinAmp .. Just because you don't, doesn't mean everyone else does. It comes back to the ole gun arguement again .. Lots of different uses, but just by owning one doesn't make you a killer. The RIAA simply cannot be allowed to be above the law, ever. They must be reigned in, and some of the senators are noticing the victims of this are mostly innocent and the punishment is not fitting the crime. $11k fines for a swapped song? Try $5.
At least clients/networks like eMule reward people for uploading and allowing incoming connections. During busy times, leechers on eMule have to wait about 4-5 times as long for files. I wish that eMule had an option to ban them all together, but when eMule servers get really busy, the leechers, or "LOW ID" people, can't get a single file.
More than enough BS
The RIAA sueing all the file traders
or
SCO sueing all the Linux users for licence fees.
They both have a few million lawsuits to get through in the next few years.
Now would be a good time to become a lawyer. There will be an unlimited supply of work for the next couple of thousand years.
"Taligent is still pure vapor. Maybe they'll be the last who jumps up on Openstep... "
I'm wondering what music came preloaded on her computer? Did she buy it from Dell or did she buy it from her son who spent a semester at school on an OC-3 connection? It is not supprising that she used KaZaA to listen to her music. She probably heard about it from people or maybe those random popup windows came on and downloaded it for her and automated the ripping of her music to mp3 format. She was within her fairuse of the music ... untill KaZaA shared it for her. The RIAA is going after major file sharers, so how much music did she have and what kind of internet connection? I mean if she was on a 128K line she would notice that ammount of traffic slowing her down from just getting email.
When I run Ad-Aware on people computers at school I typically get 300 - 500 spyware associated hits. This is amazing and the student who owns the computer is like huh, thats why I get popup windows and why my computer is so slow?
IMHO there should be some way of regulating computers and their user, just like with automobiles. Should she be held accountable for attempting to disable file sharing? I tried to stop my lead foot from speeding but the cop didn't belive me.
People need to take the initiave and educate themselves on how to use a computer on the internet. Drivers education is mandatory in some states if you are under 18 years of age before you can legally drive a car. If you never took drivers ed you are a dumber drive according ot the insurance companies so you pay more. I'm tired of having to pay for stupidity of others when it comes to computers.
~ryan
First, easy enough, don't buy their CDs. If you think the music is too expensive, don't buy it. Second, don't upload, download or share and music associated with the RIAA. If you possess music files that were not purchased, unless the songs are free, it's stealing. Either buy the song or delete it. If nobody has RIAA music on their computers, RIAA can't use P2P stealing as an excuse. Third, don't even watch music videos or listen to the radio when RIAA songs are playing. Since advertising revenue comes from here, doing this will help them. When people start legally battling RIAA by ignoring them, then they will eventually die. Bottom line, music is arguable a luxury, not a necessity. There are many alternatives to RIAA music. Choose one of those alternatives.
Green Monkey san
And by pleading the 5th, she is indicating that she might had done something illegal... a sure bet to get investigated further.
You can draw the same punishment for selling fake pot as you can for selling real pot.
I knew a kid who found that out the hard way. He thought it would be hilarious to sell an ounce of oregano to the guy everyone knew to be an undercover cop (small town with a "vice squad" consisting of two cops).
Turns out the law didnt care.
By the same token, would you get a lighter sentence for serving out a crappily encoded copy of Britney Spears latest album, full of pops and skips?
I don't need no instructions to know how to rock!!!!
People, stop stealing, the government hates competition.
I can't wait. I have several dozen (Still Going) Mp3's shared on Kazaa.
They all have different names like:
beetles - penny lane.mp3 2.8Mb
shakira.mp3
All of which are my peronal ramblings about the songs or artists. None of which contains copywrited material.
F*ck the RIAA.
I get letters from them all the time at work.
User with IP x.x.x.x is sharing via the Kazaa network.
Sharing one or more of the follwoing:
(They list like 5 songs)
Blah, Blah, Blah, Blah
Bastards are fishing for Tuna in a swimming pool.
Why worry? Each of us is wearing an unlicensed "nucular" accelerator on his back.
Sig changed for readability by G.W.
I have rights! The Constitution protects me! Blah blah blah blah blah. These cases are civil lawsuits and will be decided by civil courts. The Constitution doesn't even enter into it. A judge would laugh you out of court if you tried to argue that the Fourth Amendment prevents the RIAA from serving you with a subpoena. This isn't the Supreme Court kids. And the RIAA isn't the Federal Government. Bringing up the Bill of Rights into a civil lawsuit makes about as much sense as killing flies with a sledgehammer.
Support the First Amendment. Read at -1
Ah, but here's a question... Should a corporation be able to request a subpoena? Or should only law enforcement be able to request subpoenas? Yes, the subpoenas are being granted by a court of law, but the issue here is that the RIAA is trying to act as a law enforcement agency itself. Or seems to.
Is it right that a corporation can say, "We suspect the person connected to this IP# at this time of trading files illegally. Give us the name so we can prosecute." or would it be better to say, "We suspect the person connected to this IP# at this time of trading files illegally. Please investigate this as we believe this person has caused us harm."
See the difference? The RIAA is trying to act in place of the police or a licensed private investigator. This is kind of like me going down to the court and saying, "I think someone who lives at this address took my rake. I want you to tell that address's owner to give me all the tenant's personal information."
There's a lack of law-enforcement involvement here, and I think that's what's getting people upset. IF I traded files illegally and some company came along and said, "Hah! We found out who you are and you're in big trouble!" I'd be upset. If some police officer (or a legal document from a public offical, really) came along and said, "There was a complaint that you were trading files illegally. We obtained a warrant..." Now, that's a bit different.
I really believe that the issue here is that a private entity seems to be in a position where they are receiving public powers to some extent. And that's why people are upset.
... "I read part of it all the way through." -- Movie Mogul Sam Goldwyn (and some slashdot readers)
I live in the boston area and I find really sad that their is no due process for cases like these. I mean I find it sad that the RIAA and MPAA are conducting a witch hunt for piraters and yet ruin innocent people through doing this. I know that MIT has a stringent policy on piracy. I also know that Northeastern MASS has that policy too. My hat goes off the girl for taking on the search and policy at the MPAA and RIAA. Because we all know that their are some that are innocent of these searches of peoples machines. Its a subject that 2600 in Boston hates, and we should support free speech and not greed!!
LOW ID is differnet from a leecher, lowid is a client who can only initiate connections, for example people behind proxies.
leechers are people with a low credit.
In the US, you are innocent until proven guilty.
But Oppenheim countered that "their arguments have already been addressed by a federal judge -- and they have been rejected. Courts have already ruled that you are not anonymous when you publicly distribute music online."
The above statement presumes that you are already guilty. At the very minimum there should be a hearing to validate that the a supeona is warrented (pun intended).
All your base are belong to us!
Your assessment is wrong. See in the text below of the DMCA (section h1).
Therefore, the copyright holder still needs approval of a clerk of a FEDERAL judge in order to issue the subpoena.
BTW, this text comes from EFF.org itself.
They are only accused of violating the law. They have not been found to actually violate the law.
Should a corporation turn over any personal information of an anonymous individual private individual to another corporation.
Lacking permission of the individual this is generally not permitted.
In the case where there is a court order the individuals wishes are overruled by the government.
Should the government overrule a persons right to privacy? On what grounds? Accusation without evidence? Accusation with circumstantial evidence?
What protections will be in place for this private information?
If a company can overrule my privacy rights, I should be allowed some way to pretect them.
I am not suggesting privacy for criminals, I am advocating that innocent people should retain their privacy until there is at least a reasonable chance they are guilty of something.
Correct me if I am wrong, but isn't it your responsibility to know the law? If you get pulled over for speeding, the excuse of "I didn't know I was in a school-zone!" isn't gonna fly.
Hmmm....Prophylacticism....Did I just invent that word?
Kiddies, I've said this before and I'll say this again. If you HAVE to do P2P, install an open Wi-Fi access point on your home network. Keep all your goodies behind a firewall, but have that open Wi-Fi there. When the RIAA drags you into court, you will have a big wad of plausible denial on your side. There is NO LAW that makes you liable for unauthorized use of your network access.
Besides, if you're willing to share your music, why not share some bandwidth too?
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
Subpoenas are issued by the judge or the district attorney in a particular jurisdiction. In the case of the DMCA, subpoenas are issued by a Federal Judge.
Should the corporation be able to request a subpoena? Sure, shouldn't you be able to request one? Any entity in a lawsuit can request a subpoena from parties unwilling to cooperate in order to obtain evidence of the truth. If you were not allowed to ask for a subpoena, you'd be complaining about how this is a Police State and that the government was hiding the truth.
Is it right that a corporation can say, "We suspect the person connected to this IP# at this time of trading files illegally. Give us the name so we can prosecute." or would it be better to say, "We suspect the person connected to this IP# at this time of trading files illegally. Please investigate this as we believe this person has caused us harm."
No. It's not up to the ISP to investigate it customers' usage. In fact, if they did, they would be lose their 'Common Carrier' status and be held liable for the contact of those transfers.
See the difference? The RIAA is trying to act in place of the police or a licensed private investigator. This is kind of like me going down to the court and saying, "I think someone who lives at this address took my rake. I want you to tell that address's owner to give me all the tenant's personal information."
Correct! And this is perfectly legal, as long as you have enough evidence to support the fact you think this person is responsible for taking your rake. You would have to provide this evidence to a judge who would issue the subpoena for this person's name, address, phone number, and maybe even his employer's information so you can have them testify into court as to whether they took your property or not.
There's a lack of law-enforcement involvement here, and I think that's what's getting people upset. IF I traded files illegally and some company came along and said, "Hah! We found out who you are and you're in big trouble!" I'd be upset. If some police officer (or a legal document from a public offical, really) came along and said, "There was a complaint that you were trading files illegally. We obtained a warrant..." Now, that's a bit different.
The court of law is NOT law enforcement? It's not up to law enforcement to investigate and determine who is violating copyrights, but it is up to the copyright holder. Therefore, it's the RIAA's responsibility to do the investigation. Data from the investigation is turned over to a Federal Court judge in order to determine if the data is enough to request the subpoena.
But deliberately running a P2P server could could be criminal if it distributes songs worth $1,000 in 180 days. Using Apple's $0.99 per song retail price, a well connected P2P server could easily do this. Actual prosecution would require that the a Federal prosecutor file changes. The RIAA cannot ask a prosecutor to do so, but not force them to file.
At least so far, all of the RIAA's actions against P2P users have been civil not criminal. They have gotten the government to use criminal law against large scale counterfeiters.
There is much confusion in these discussions because of the distinctions between criminal and civil law. If your knowledge of the law comes from watching Law & Order on TV, then you may think that criminal law is the only law that exists. Civil law is thought to be too boring for TV drama. Shows like Law & Order will take real civil cases and turn them into criminal cases by having someone connected to the case be murdered and/or raped.
I cannot imagine any useful service that the RIAA could be performing sufficient to justify it's other actions. In particular it's corruption of the legislature.
This isn't merely that I don't believe that they are performing any such useful service, but literally that I cannot imagine any such service that they could be performing that I couldn't immediately determine wasn't being done. Or at least not by them.
More to the point, the existence of, and actions of, the RIAA and the MPAA cause me to question the validity of the copyright laws in general. Also the validity of corporations. That such organizations could be permitted to exist by the legal structure is a clear mark against such a legal structure. So any law that supports them or affirms their right to exist and do business is automatically called into question.
I think we've pushed this "anyone can grow up to be president" thing too far.
No I wasn't. Nothing gives you the right to make copies of copyrighted works without the owner's permission, with the exception of fair use and other similar, more specific, statutes.
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.
When you listen to the radio, the radio has paid to distribute the copyrighted work to you (you are allowed to copy songs of the radio, BTW). Listening to music at the music store or borrowing from the library has absolutely no bearing on this, since you are not making any copies, just borrowing a physical object. It doesn't matter if you feel that you haven't done any harm, or that it is the same thing, the execution of the act (copying a copyrighted song) is illegal, even if you delete it later. An analogy could be if you ask your neighbor to borrow his car vs. if you take it without his permission. Even if you bring it back, and you feel that "no harm was done," or "it's the same thing" it would be illegal to take his car and you could be prosecuted (not a perfect analogy, but hopefully you get my point).
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.
When did I say that backup copies weren't legal, they are expressly protected under Title 17. However, you are talking about apples and oranges here, since all of the rights you mention only apply if you have a legal copy of the copyrighted work. You do not have the right to make "backups" of software you don't own. As far as determining harm and damages, that is left up to a judge to decide that on a case by case basis. However, a judge may very well decide that making illegal copies of copyrighted works, regardless of the duration, IS harmful to the copyright owner, depending on the circumstances.
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?
After rereading this passage several times I believe what it is saying is that you may use your recording devices (including computers) in any manner that you want, providing you are not violating any other copyright sections of course. This means that while you may be able to make a backup CD for your personal use, I don't see anything in there that gives you a right to distribute copyrighted works, including giving copies to your friends. Of course, IANAL, and if you seriously intend to use this defense in a court of law I suggest you get the advice of a good IP lawyer.
When you lose something irreplaceable, you don't mourn for the thing you lost, you mourn for yourself. - Harpo Marx
Excellent explanation about the various circuits.
I think you're right that the Supreme Court hasn't looked at a number of these issues. And even since the DMCA was first proposed, I seem to recall hearing that the underlying idea was the everyone on board, Congress and the Clinton administration, knew it was unconstitutional so it was politically pain free. Just pass it and wait for the Supreme Court to nullify it. The question is why the RIAA is so inept as to force it to the Supreme Court.
The next one is the NET Act. That is the most absurd piece of legislation I can imagine. It essentially tries to re-write the English language to make all exchanges commercial. That's illogical on so many levels. To take it to an extreme it makes all sex prostitution, but you don't have to take it to an extreme. How about gifts? How can the IRS have a gift exemption if a gift is a commercial transaction? If a gift isn't commercial, then how is P2P commercial? You can't have it both ways.