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Taking a Closer Look at the P2P Subpoenas

Posted by CmdrTaco on from the this-is-the-real-problem-folks dept.

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.

17 of 276 comments (clear)

  1. The problem with "John Doe" lawsuits... by sixteenraisins · · Score: 5, Interesting

    ...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.
    1. Re:The problem with "John Doe" lawsuits... by David+Hume · · Score: 5, Informative

      If they file "John Doe" they don't know who they're actually suing until they've already won (if they lose, end of story).


      This is incorrect. The RIAA can obtain a subpoena to the relevant ISP immediately after it files the "John Doe" lawsuit against the unknown defendant. The purpose of the subpoena would be to identify the defendant. After the defendant was identified, the complaint would be amended to add or substitute the defendant, and the legal action would proceed. The court would not allow the action to proceed to judgment against an unidentified defendant who never received notice of the action or an opportunity to respond.

      --
      Only Women Bleed (Sex, Sharia remix)
  2. New Bill In Congress by slutdot · · Score: 5, Interesting

    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.'"

  3. Put your hands on the wall... by winstarman · · Score: 5, Funny

    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
  4. Promising? by __aagmrb7289 · · Score: 5, Interesting

    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.

    1. Re:Promising? by _avs_007 · · Score: 5, Insightful

      Not that I pirate or condone piracy, but I'll never understand why:

      If I record a song/tv show off the radio or TV, then let a friend borrow and copy it, why this is illegal.

      This friend could've recorded the song/tv show off the radio/tv themselves.

      I suppose you could make an argument over different markets, but lets face it. For pretty much all the popular songs floating around p2p these days, they pretty much play in every market, as every market has a "popular" radio station. All probably owned by ClearChannel too.

      I know people have been making arguments about perfect copies and such. But MP3s are lossy. And many of the songs are floating on P2P before the CDs are even released, so they were probably recorded off the radio anyways. Besides, I heard that most of the MP3s floating around P2P are only 128kbit/sec recordings anyways...

  5. pre-internet days by Anonymous Coward · · Score: 5, Insightful

    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????

  6. Re:Political Appointees by I+am+Kobayashi · · Score: 5, Informative
    "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"
    But federal judges are lifetime appointees, and are fairly well protected by Article III from direct political influence. So while the judge's ideology and judicial temperment is largely decided by the party in power at the time of the appointment, the judge will be a judge whether her decision is popular or not with her party. Once they are appointed it is very difficult to remove a federal judge(thankfully).
    --
    --Kobayashi--
  7. Brownback's Own Press Release by drpentode · · Score: 5, Informative

    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.

  8. Re:Poor babies.. by lone_marauder · · Score: 5, Insightful

    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.
  9. Oh Canada! by grub · · Score: 5, Funny


    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,
  10. Threats from the record industry side by slavitos · · Score: 5, Interesting
    Perhaps, on a relevant note, yesterday's article in the "Internationa Herald Tribune" (reprinted from NYT) mentioned several reasons why these subpoenas may be counter-productive. One of them was that they will encourage people to move to more secure and anonymous networks (either Freenet-type or so-called "darknets").. It was interesting to hear the response to this argument from the "other side":
    "The thing about darknets is that the users show more culpability than people who simply use peer-to-peer," said Randy Saaf, chief executive of MediaDefender, a music technology company that does work for the record industry. "When people are found to be using them, they will face stiffer penalties".
    Now, from where I stand, this sounds like a threat. Also, I don't think there's any legal basis to threaten anyone with "stiffer penalties" simply for using a better technology to do the same thing.. What do you guys think?
  11. RIAA has to connect ISPs to infringement... by Not_Wiggins · · Score: 5, Interesting

    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.
  12. Wireless networks by Transfan76 · · Score: 5, Interesting

    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?

  13. Re:Legal Perspective? by El · · Score: 5, Funny
    This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

    Hey! I know of a guy who made available over a million copyrighted works! His name is Andrew Carnegie, and he started this lending service called "The New York Library"! Maybe the RIAA should go after him, as he's obviously a notorious pirate!

    --

    "Freedom means freedom for everybody" -- Dick Cheney

  14. Re:Slashdot ... by Roark+Meets+Dent · · Score: 5, Interesting

    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.

  15. Re: RIAA's problem with "John Doe" lawsuits... by cryptoluddite · · Score: 5, Interesting
    The RIAA does not want to file actual lawsuits for lots of reasons. There's the higher initial cost, but the real problem for them is that they have to actually come up with evidence.

    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.