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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.
On the other hand, I am Interested in the legal ramifications of IT. Oh, never mind...
I guess the legal shit does affect us all.
There is no spoon or sig.
...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.
Judges are political appointees. If the political parties are paid off by RIAA, MPAA, etc the rulings will be in favour of the RIAA and MPAA. There are a lot of good judges out there, but $$$$ unfortunately wins
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.'"
Scott McIntosh, an appellate lawyer with the U.S. Justice Department, assured the court that "we don't think the constitutional questions are substantial ones."
That sounds extremely accurate to the RIAA's view. Nobody has rights, but they have copyrights!
I just want to see more 12-year-old girls get sued. I mean, you can't BUY publicity like that!
"How can we attract attention??? hmm... I dunno.. I've got it! Let's inadvertantly sue a pre-teen-daughter-of-a-single-mom!"
Brilliant. But so very stupid at the same time.
Hard loop..... huh?
Dynamic Designs
the RIAA could be forced to file thousands of "John Doe" lawsuits instead
You KNOW this is someone's actual name. I feel so bad for him.
Then again, Mr.Doe has probobly gotten this all his life, maybe we should help him out? www.savejohndoe.com?
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.
how many of us in the pre-internet days went to the library to photo copy a text book for a paper and then after the paper was done threw out all the copies?
is this copyright infringement???? probably.
so drawing from this it seems like the RIAA is only interested in short term profit. i mean i use kazaa and i can never find a good selection of Carol King or Arthra Franklin songs. does the RIAA itself feel that their artist have no long term value????
Also of note is a press release from Sen. Brownback's own office. The press release also discusses the senator's plans for the digital TV broadcast flag.
Still looking to find a legal loophole to avoid being penalized for knowingly breaking the law. Sad.
That someone knowingly breaks an unjust law imparts it no justice.
who are those slashdot people? they swept over like Mongol-Tartars.
Phew!
I hope the appeals court rules in favour of the file sharers. The thought of all those American P2P evil-doers moving up here to Canada was scaring me.
Trolling is a art,
What their tying to do is (a) use an aggressive interpretation of a new law to their advantage while (b) circumventing standard legal procedure for filing of civil suits.
Throw in the fact that there is a related article on cnet about how the RIAA is claiming that P2P networks are "rife with child porn" in order to make P2P seem like more of the devil's work.
Maybe someone has answered this legitly elsewhere, but I would love it if there could be a little light placed on this question since IANAL.
If P2P networks such as KaZaA (et. al) share files in a directory that you have previously downloaded by default, can you truly be held liable for making them available without your knowledge?
Imagine this situation:
I find a friend to OCR scan a copy of a book (which I own legal copy of) to my word processor for "backup" so I can read it if the original is destroyed. Following that, someone comes over to my house, and finds the file which is aptly named and copies it to a disk, and is subsequently caught possessing his "illegal copy". Can I be held accountable for giving him access without my knowledge?
To me it seems these P2P networks automatically make these files available with little knowledge to Joe User trying to find someone who Ripped and Encoded the latest Jay-Z song for use on his new iPod, which he could possibly own, and have a right to possessing a backup.
I know that just because you don't understand a law doesn't mean you can't be held accountable for it. I know distributing files is illegal, but if I don't know they are being distributed via my PC because I'm not "technically adept" is that a crime?
That someone knowingly breaks an unjust law imparts it no justice.
Which is exactly why I don't free my slaves.
Trolling is a art,
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?
He also has had a varied acting career, having been in "Great Balls of Fire", "Georgia", the TV show "Roswell" and of course, the classic "Roadhouse" with Patrick Swayze.
I'm glad to hear that the band is back together.
The courts decide what laws are just or not. The problem is that people would like to empower themselves this right. I can't go to court and fight a speeding ticket because I didn't think the speed limit matched the speed I thought the road is capable of and expect to win.
You'd rather shift the money making from CDs to concerts, turning music distribution into a loss leader?
What makes you think this is the only viable mechanism? There may well be a way to allow a certain amount of file sharing without completely destroying CD sales. Sure, a lot of people say they want copyright law abolished, but most people are reasonable, and will accept a compromise whereby they can get some free music.
File sharing will eventually be dealt with, one way or another, whether it is eliminated or legalised, I have no idea. We just have to wait for whoever has the solution.
The vast majority of these Judges are uneducated when it comes to technology.
You kidding me? I could walk up to any judge and ask him the difference between FTP and P2P and receive nothing but blank stares.
Of COURSE the uneducated are easily manipulated. If you know nothing about cars and you take your car in to get the brakes fixed and they come back and make some BS story up about how your exhause pipe is cracked, how would you know if it's valid or not? The majority of people would just nod and accept that it needs to be fixed rather than checking the validity of the problem. Much like the RIAA is trying to sway judges by saying it's now a medium to trade child porn or whatever bullshit story they come up with.
These people are making decisions on things they know NOTHING about. Why don't people question *that* instead?
We have secretly replaced these Slashdot mods' sense of humor with a rusty nail. Let's see if they notice!!
So say the RIAA takes me to court.. and I have a legal copy of every song that i downloaded .. and made them available for people who also had legal copies but didn't know how, or couldn't be bothered to rip/encode them so that they could have a copy.
:)
Could you then counter-sue the RIAA? I say we make a library of legal "loaner" cd's for people that they can purchase at the courthouse before trial for $0.01 per CD, just because it's a used cd, doesn't mean you have any less rights to the content on it.
I'd imagine if you entered a stack of 600cd's as evidenece that a) the court clerk would be pissed, and b) the RIAA would start to look pretty stupid.
What am i saying.. i'm canadian.. i'm just timeshifting.. plus i pay for piracy with every blank CD that i buy.. it's a right the lobby has in-advertently given me
Forcing the RIAA to first file "John Doe lawsuits" does not make the burden of identifying users "much more complicated." It may, however, make it initially more expensive.
As stated in the linked article, the RIAA contends that the DMCA allows "copyright holders to glean the identity of alleged infringers without filing a lawsuit first." As also stated in the article, Judge John Roberts, one of the judges of the three judge appellate panel, questioned that interpretation.
If the RIAA is incorrect, and it is forced to first file "John Doe" lawsuits, it will initially be more expensive in that they may have to pay a filing fee for each lawsuit. (It may be possible for them to file a single lawsuit in each jurisdiction where each such suit names numerous "John Doe" defendants. However, in some jurisdictions they may have to pay more for a large, multi-defendant suit.) Once the "John Doe" lawsuits are filed, the RIAA can subpoena the relevant ISPs to identify the "John Doe" defendants. It is, for an entity as well-funded as the RIAA, at most a relatively minor procedure hurdle.
The reason why I say forcing the RIAA to first file "John Doe" lawsuits may only be "initially" more expensive is that in many cases the RIAA would have to file a lawsuit anyway -- i.e., in every case where pre-lawsuit subpoena to idenfity the downloader did not lead to a pre-lawsuit settlement.
Only Women Bleed (Sex, Sharia remix)
This maybe the case in your country, but in America our laws are based on the will of the people, not arbitrary deemings of "right" and "wrong."
Nevermind the fact that the Constitution itself, and the Bill of Rights in particular, is a finely crafted document part of whose explict purpose is to allow citizens not only to break a certain class of unjust laws, but to do so with little or no risk of prosecution by denying the government, and by extension anyone else ( because all law is enforced at the point of the government's guns) the power to do so.
Specificly, with regards to this case, the RIAA is invoking governmental powers ( court orders) to go on a "fishing expedition" to identify people it has only cursory a priori reason to suspect and without judicial oversight and on an assemblyline basis.
That sort of behaviour is traditionally verboten and shit.
KFG
You know, up until recently it was against the law to have anal sex of any kind in Texas. Does that mean that everyone who did that should have been punished for it?
More to the point, is file-sharing theft? Since the evidence shows a strong correlation between file-sharing and CD sales, I would suggest that file-sharing is marketing, not theft.
And I'm not the only musician who thinks that way... See story from yesterday's Slashdot.
Good McBride: We wants it. We needs it. Must have the $699. They stole it from us. Sneaky little thieves. Wicked. Tricksy. False.
Bad McBride: No, no.
Gollum: Yes, precious. False. They will cheap you. Hurt you. Lie.
Good McBride: But filesharing is my friend.
Bad McBride, ridiculing: You don't have any friends. Nobody likes you.
Good McBride, hands cover ears: Not listening.
Bad McBride: You're a liar. And a thief.
Good McBride: No.
Bad McBride: Mur-der-er.
Good Mc Bride: [sniffling] Go away.
Bad Mc Bride: Go away!? [laughs]
Good McBride: I hate you. I Hate you.
Bad McBride, flabbergasted: What did you say?
Bad McBride, still in shock from the realization that Smeagol has balls: What?
Good McBride: Leave now, and never come back.
Bad McBride: nooo grrrrrr
[Dance] Gollum gollum gollum. Smeagol is free!!
What are you talking about? The article is about a federal court (not some slashdotter with a 400gig mp3 collection) scrutinizing a law not for loopholes but to see whether the dramatic action taken by the RIAA -- action which infringed on the privacy expectations of all ISP users, not just those downloading mp3s -- was legal. Hell, you didn't even have to read the article to figure that out.
I honestly think that the RIAA is out of controll and that copyrights are immoral, but either way these arguments are irrelavent. Right or wrong, good or bad - copyrights are effectively unenforcable on the internet. It is not a matter of if, but when the people backing them will simply run out of steam.
They can make rules, laws, declarations, assertions, and in IMHO people can ask for the rest of time if people should respect copyrights, but when all is said and done - people can copy whatever they want, and they can more or less do it without any fear of retribution inspite of the occasional highly publisized wich hunt. Even now with all the lawsuits, and trading from publicly viewable IP addresses, the chances are still one in millions of being nailed. You're more likely to get ran over by a bus.
Sure, if the gov randomly raids 10 million homes per year, and pops a bullet in the head of anyone who posesses unauthorized copyrighted materials on site without trial - then perhaps the copyright regime will be extended a few years longer, but lets get real - copyrights are really dead, and the RIAA, Microsoft, and even the government simply haven't faced that reality yet.
Do you get a cookie for not reading my post?
.05c .10c .20c
As I said, I have in the past bought CDs even when I had the mp3s.
Who said anything about charity, there you are strawmaning again. Great.
CDs are still sold, concerts still paid for, Merallica still makes money from their official merchandising etc...
Oh and even if Metallica showed up on my doorstep and kissed my toes I'd not give them a penny...
If CDs are $5 it's not worth my time to download them. There is NO reason that they can't cost that.
CD -
CD Case -
CD Booklet -
Delivery etc -.50c.
Profit Per CD = $4.15
In Soviet Russia, the television watches YOU!
Isn't it beside the point whether the RIAA has to file a John Doe suit first? They certainly have the legal resources to do so. And the intent: the current subpoenas will be followed by lawsuits, or so they claim. Seems to me their methodology of identifying infringers is plausible enough that most judges would grant the subpoena if asked. So what will be different? I am uncomfortable with giving the RIAA the power of subpoena without judicial review, but so far, they have done nothing other than do what they said they would. Regardless of the procedure, I think it is inevitable that file sharing will continue, probably on yet to be developed networks that offer true anonymity. Which will trump the RIAA regardless of the outcome of the current legal spat. The RIAA should stop pissing into the wind and figure out how to make money with new technology. In the meantime, technologists should stop pissing on the RIAA and get those new, anonymous networks up to speed.
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]
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.
All the default-user@kazaa.com on ip range 64.1.1.1-64.255.255.255
um.....?
Ave Molech Setting
I'm just curious how the RIAA knows exactly what files I supposedly have and are supposedly trading? Are they monitoring Internet traffic from selected IP ranges? Investigating all large transfers? Flat out looking into people's unsecured harddrives and searching for *.mp3? I want to know what legal right they have to do this search anyway? Do they have a warrent for anything of the sort?
Nullum magnum ingenium sine mixtura dementia (There is no great genius without a mixture of madness) - Aristotle
If RIAA tries to intimidate me and it turns out they're wrong, then when I counter-attack for vengeance, I don't want to just be able to say "well, they sent me a threatening letter and it hurt my feelings and stressed me out," because that will result in a judgement of $0 in my favor. I want to be able to say, "They falsely filed suit against me, and that required me to take expensive actions to defend myself, and here are the damages that I want RIAA to pay me."
John Doe's ID should only be revealed if RIAA is pretty sure they have a strong case -- and is willing to bet on it! This will deter fishing and gratuitous bullying.
I don't think that approach should be a problem for them, either. I hear there's a lot of real infringement going on out there, so they won't have problems finding it. Just be careful where you aim that gun, RIAA, because if you point it at me, I'll point something back.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
No faith you have. Teach you I will.
who are those slashdot people? they swept over like Mongol-Tartars.
Yes. It's called a public library, and it's been one of the strengths of American society ever since Ben Franklin instituted the first one.