Slashdot Mirror
Taking a Closer Look at the P2P Subpoenas
An anonymous reader writes "Cnet is reporting a federal appeals court on Tuesday scrutinized the details of a 1998 copyright law, wondering whether it permits the wide-scale unmasking of alleged peer-to-peer pirates by the music industry." The issue, of course, is the constitutionality of the DMCA subpoena process which is among the more evil components of the often-criticized law.
...is that the RIAA can file thousands of them arbitrarily, then assign individuals to those lawsuits once they're properly identified. At this point, I wouldn't put this strategy past them.
William
When you're not looking, this sig is in Latin.
I just read an article about a bill introduced by Sen. Brownback which would "require owners of digital media to file a John Doe lawsuit to obtain the identifying information of an Internet user, rather than simply requesting a subpoena. Currently, the Digital Millennium Copyright Act permits copyright holders to subpoena an Internet service provider for the name and address of a person they believe is violating a copyright. The one-page subpoena request can be issued by a court clerk and doesn't require a judge's signature."
"'There are no checks, no balances, and the alleged pirate has no opportunity to defend themselves,' Brownback said when introducing the bill. 'My colleagues, this issue is about privacy, not piracy. 'This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.'"
There were a few promising, and some other, less promising, statements made in this article. So I'll summarize what I like/dislike:
1. Looks like there are some politicians listening to us, a little. And a republican! 'Course, the senator is looking to defend ISPs, but the byproduct is defending the users of that ISP from having their privacy violated for no reason.
2. Looks like there may actually be some traction happening on this issue - all prior "looks" by judges at this issue has been a quick dismissal of the concerns.
Don't Like:
1. The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.
2. Ginsberg doesn't seem to understand the difference in usability for the average user between an FTP site and a P2P file sharing network. Not that his comments are invalid, but certainly the scope is very different. How do we educate our judicial system?
Anyway, some thoughts... take them as you will (I'm sure there are things I missed here).
Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.
It seems that the crux of this issue comes down to who's really infringing on the copyright.
It boils down to how the RIAA is trying to obtain the names and if the ISPs are a participating member of the "theft."
They have the right under the law to get the names of the offenders before they bring suit.
This seems reasonable.
They've chosen to go after the ISPs because they'd have the easiest (if only) way of identifying which people are the "thieves."
HOWEVER, just because the RIAA has the right to go after the names doesn't automatically mean the ISPs have to give them up.
I think this will boil down to deciding who is culpable in the pirating of music. If the RIAA can prove in court that the ISPs are actively infringing on the copyrights, then they'll be open to be sued to get the names of their "accomplices" (ie, Joe Downloader).
However, if the RIAA can't connect the ISPs with the downloaders, then they might be SOL.
It is a similar question faced by gun manufacturers. People would like to see them be liable (responsible) when someone dies from a gunshot wound. I believe it has been held up in court that simply providing the means to commit the crime *isn't* a crime when that wasn't the intention. Put more plainly, if the gun makers intended people to use the guns in crime, then they would be liable. However, since they provide guns for other legal uses, the fact that they can be used for evil isn't a strong legal point.
To make the point more obvious, it would be like making car manufacturers liable when people use cars to run people over. Absurd, I think you'd agree.
I'm hoping the courts will make the similar connection and stop the RIAA subpoenas. To this point, just because the ISP provides the network connectivity that makes P2P pirating possible, it wasn't the original intention. Hence, they aren't delivering a service for the purpose of supporting illegal activity... they're not directly culpable... so they should be able to tell the RIAA, "find your names on your own."
Diplomacy is the art of saying, "Nice doggie!" until you can find a rock.
I've been curious how it's going to work with all these open wireless networks hanging around. if someone uses your wireless networks, unbeknown to you, and the RIAA comes after you for copyright infringement, can they hold you legally responsible? Since copyright infringment isn't a criminal offence, and from what I know, there is no law requiring me to secure my wireless network, how can I be held responsible for what some stranger did?
This has caused problem for more than one president who had hoped to stack the court only to find that the appointed judge did in fact have ethics.
OTOH, the elected judges tend to be the ones that might rule more often on the basis of personal prejudices and personal gain. These judges, like all politicians, have war chests to fill.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
I mean, these are the guys who aren't happy with the over-reaching Patriot Act -- they want a second act that goes even further. And according to recent press they've begun giving the nudge to prosecutors to find ways to get non-terrorists nailed on terrorist charges to radically increase the penalties for other violations of the law.
But of course, all those of us who think that the government would ever transgress our liberties are just paranoid terrorist supporters...
Quoth he
"It's all academic anyway..."
Ignoring this only leads to things like our famous Boston Tea Party.
Consider substituting "RIAA" for "East India Tea Company", "DMCA" for "Tea Act", and "music" for "tea", and things look awful similar to today's situation. Note how the people involved in the "overthrow" are referred to as "Patriots". You would infer from this the "Patriot Act" would mean something completely different from what it does, ya?
"Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
Has anyone wondered why it is necessary for ISPs to keep such detailed records of everyone's connection activity in the first place? Hmmm? Think librarians shredding records to avoid Patriot Act --- apply to this situation.
They want to be able to write you a letter, DirecTV-style, that says "we know you are a pirate, pay us $3500 or we'll send you to debter's prison" without having to come up with decent evidence (or any evidence at all). They want to send these letters to people who haven't even downloaded/shared music and extort money from them. Preparing an actual lawsuit will cost a lot, and if they screw up they'll get smacked by the counter-suit. Plus anybody can demand a jury trial since the potential damages are large enough. It'll be hard for the RIAA to get a jury without filesharers on it and the courts and congress will not take kindly to lots of jury trials for this kind of thing.
The next generation of P2P clients, which will provide forms of statistical anonymity, combined with DCMA exceptions, will make it extremely difficult to actually come up with evidence that anybody actually infringed on their copy right. The RIAA is just causing people to use stronger filesharing, which hurts our government's ability to find actual criminals. Not only does nobody benefit from their actions (not users, artists, or the government) but it's actually causing damange to everybody else.