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Appeals Court Rules Against RIAA in DMCA Subpoena Case
JohnTheFisherman writes "My Way News is reporting that a Federal appeals court ruled that the RIAA can't compel the ISP to provide the name of the downloaders in their case against Verizon. In fact, the court said that one of the arguments the RIAA used 'borders upon the silly.' I believe most here will agree that this is great news." We've been following this case for a while.
Does anybody know if the ISPs could now be liable if they release thei customers' data without their consent?
Fleur de Sel
Well, this is extremely good news. While I think that the file-sharing that occurs on networks such as Kazaa are largely copyright violations, I'm happy to see that the bar has been significantly raised for the RIAA to go after alleged violators.
This ruling will help re-establish anonymity on the internet, as users can worry much less about being identified by a vengeful 3rd party-- be it a record label cracking down on copytright violators, a corporation trying to stifle criticism or a politician trying to un-nerve his opposition. This is a beautiful ruling, and if it stands, its effect will reverberate fare part the file sharing arena.
"It unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation." -RIAA Yep, thats it all right, we're PUSHING them to sue.... They dont really want to after all.. CoirNoir
It's always been silly, and it's just now dawning on the judges?
This is great news. Incentive, really. Yes, the lawsuit was against Verizon, but I see no reason why other companies (and individuals) shouldn't stand up and challenge a lot of what has been going on. It's not necessarily that our judicial system has been in agreement with the RIAA, it's just that people have had no precedence working for them in a courtside challenge. The question now is, which do we take on: the RIAA, or the DMCA itself?
Damon,
http://actionPlant.com
The point is, these subpoenas are issued with little specificty and the targets of them don't find out about them until their ISP informs them. If you are being accused of a crime, you should have the right to discover what the accusations are and to defend yourself. Apart from the rather trollish fact that you compare the copying of music with serious sexual interference with kids, a child molester would be formally charged with a crime before being commanded to appear in court. So he gets a chance to defend himself. The RIAA subpoenas didn't allow that luxury to the targets of them...
...the real problem is Congress. I think the RIAA will just go back to their Congressional, Sonny Bono-style minions on Capitol Hill to get this "fixed", and we will have another silly DMCA II law that covers this situation.
Now if we can keep the entertainment industry(s) from now trying to rewrite the laws and make it legal to supoena without judicial oversight well be set. Yes it would mean they'd move to more overtly sinister means but if so they'd be screwing themselves.
Let us rejoice in this one small/big victory for regular people. You know as big as these lawsuits were supposed to be there's been little if any in the news about them. I think it's more of a campaign of disinformation than anything and some people are weak enough to buy it but most aren't ignorant to what's going on.
Ponder this...how long until we get pulled over by the police for speeding or something else along those lines and they search our vehicles for mps's burned on cdr's? I can just see being in the "bighouse" with a bunch of murderers and rapists and then they ask me what I did. Oh I just burned some Britney Spears song to a cd. What's that Bubba? Do I have to drop 'em and grab my ankles?
Our future police state sounds so much fun!
You aren't free to do anything, until you've lost everything.
The RIAA will lobby for a new law that allows them to get these records. (As the court wisely notes Congress did not contemplate P2P in 1998) If there was a time to mobilize an effective campaign against such a law, now is the time to do it.
Then DMCA nonsense can be brought to light and this case quoted everytime this stuff comes up.
On the other hand, I run a mailing list for travel agents and although collusion among travel agents is illegal (against the Sherman Antitrust Act) I have the list protected via the DMCA. If a vendor gets his hands on a private email from the mailing list, then it's a violation of DMCA just by possessing it.
Maybe we need to start thinking about ways of using the DMCA to protect ourselves. It's not just for big corporations.
Verizon had argued at its trial that Internet providers should only be compelled to respond to such subpoenas when pirated music is stored on computers that providers directly control, such as a Web site, rather than on a subscriber's personal computer.
Ok so verizon is arguing that it isn't responsible for what data the users of their service send? that they should only be responsible for data on their servers?
this makes perfect sense to me if i'm reading this right. data is data how is verizon suppose to know what the data is other then the fact that it run on port X and port X is known to be the default port for kazaa.
In his ruling, the trial judge wrote that Verizon's interpretation "makes little sense from a policy standpoint," and warned that it "would create a huge loophole in Congress' effort to prevent copyright infringement on the Internet."
if i was correct before why would this seem silly to the judge? loophole? how is it a loophole? does the USPS scan every mail going through it's buildings for copies of music? it seems to me that kazaa was just speeding up the process.
Ok other then the fact that most ISP block port 80 and 21 (among other ports) why doesn't these P2P services just use a well known port to transfer files? then in order to shutdown P2P they would have to shutdown the WWW. if i download a song off a computer of port 80 how would verizon/any ISP know it was a copyrighted song?
The court did not decide on the constitutionality of obtaining the subpeanas, they simply agreed with Verizons argument that the RIAA did not have the right to obtain them in this particular case. While this does serve as excellent case law for future arguments, it does NOT stop the RIAA from continueing to subpeana other ISPs for information.
I can count to 1023 on my hands. Ask me about #132.
The not great part is definitely the scope of the court, but it's a darned good start. I wonder if the RIAA will try to take it to the Supremes?
One line blog. I hear that they're called Twitters now.
In his ruling, the trial judge...warned that it "would create a huge loophole in Congress' effort to prevent copyright infringement on the Internet."
This means that the RIAA and others will just lobby Congress, and a law that they can use will be passed.
We're still screwed, privacy-wise, because this development will be temporary.
First, the opinion can be found here: http://pacer.cadc.uscourts.gov/docs/common/opinion s/200312/03-7015a.pdf
The basic holding here is that the subpoena provisions of the DMCA only apply to an ISP who is actually storing the allegedly infringing material on its (the ISP's) servers.
They base this holding on a finding that, in the case of file-sharing between users, the ISP is simply acting as a conduit for the transfer of information, and has no control over the transfer or the information sent. Since the subpoena provision has a notice provision in it that requires that the content-provider give the ISP enough information to be able to prevent access to the offending material. Since preventing access is impossible without terminating the offender's internet access, a remedy the court dismissed as inappropriate, the court found satisfaction of the notice provision to be impossible.
The court also ruled that the text of the statute and the legislative history (i.e., comments made and written by Congress as they debated the DMCA before passing it) indicated no awareness of P2P file sharing.
The court ends by stating that it is "not unsympathetic" to the RIAA's "plight", but it leaves the burden on Congress to change the law, if they think it really needs changing. Rough translation: Start winding up the lobbyists, they have work to do.
DMCA. PATRIOT ACT. CAN-SPAM. Infinite copyright extension.
Congress doesn't get it. The President doesn't get it. If businesses get it, it won't matter because their interests aren't aligned with ours. If the voters get it, it may not matter if the votes aren't counted right (paperless voting machines).
The only hope is if the judges get it. For the next few elections, I think judicial appointments will be the key factor in who I vote for.
Stories like this give me a little hope.
I've heard people say things like "In times like this we have to..." and thats BS. If the rules are only there when its easy, then they don't count for diddily. It is just as important important that Padila get a fair trial as it is that Joe Blow the convenience store robber get one.
Really, if we live in a nation where the ruler can say "he's bad, let's just shoot him, no need for a trial", how is that different from the way Saddam ran things?
"Mission Accomplished" -- George W. Bush May 1, 2003
"Everyone has the right to marry, provided that their partner is of a different gender..."
That's like saying everyone has freedom of speech as long as they are Republicans. In today's society, marriage has financial, legal, and social benefits attached to it. These benefits are not contingent on producing offspring (though that can have different benefits). Marriage is a legal recognition that two people have chosen to commit to each other in financial, social, and legal ways and have common interests in these areas (such as owning a home, sharing credit and debt, legal guardianship of children, etc.).
There is no argument that can explain why this should only apply to couple made up of a man and a woman. The only thing this provides you with is, in some cases, the potential for offspring. However, not all marriages produce children or will ever, such as the infertile, women past menopause, or those who just don't want to have children. Also, gay couples can have children, though perhaps not a genetic offspring of both (adoption, in vitro fertilization, surrogates, etc.). And that isn't to say that they will never be able to. The potential exists to artificially combine genes of a gay couple to produce an offspring. (Lesbians could only have girls, however.)
If gay couples are to be denied marriage because they cannot directly produce offspring (now), then why aren't all other marriages that can't, or won't? It doesn't hold water. The point is, some people are being denied benefits that others are being given. That is not equal rights at all.
And to clarify, before any confusion, I am not gay and don't have any gay friends (that I know about), though I have had a few gay acquaintences. I'm just cursed with a love of reason and logic, and there's no reason or logic behind denying gays the right to marry.
It looks to me like the appeals court might just have ruled that Verizon is a common carrier.I'm not at all sure this is a good thing. This is why.
I'm no lawyer, but as I understand it, under U.S. law common carriers (like the phone company) are legally obligated to provide service to all comers at a reasonable price, and for any legal purpose. They cannot pick and choose their customers. In return, they are shielded from liability for what others do using their service. For example, the phone company isn't liable for fraudulent telemarketing calls because it is a common carrier.
I can think of one possible pitfall right now if ISPs are deemed common carriers. ISPs set their own rules for proper use of their networks -- these are called Authorized Use Policies (AUP) or Terms of Service (TOS). Violations of an ISP's AUP/TOS can and often do result in the violator being disconnected. The most common violators are spammers.
Thanks (NOT!) to the CAN-Spam Act foisted on us by our foolish and venal Congress and President, spam is legal in the United States as of January 1. :( I am no lawyer, but I do not think a common carrier can legally forbid use of its services for *any* legal purpose. So, if ISPs become common carriers, can they continue to ban use of their networks for spamming?
Even worse, if ISPs are deemed common carriers, can they block email that was sent in compliance with U.S. law?
Catherine
The difference is we know that copyright laws are wrong. They are too long (life + 75, 95 years for corporations). The penalties are excessive beyond any semblance of actual damages or reasonable penalties. The law itself is gray on what rights we do have, and what is fair use.
The music industry has practices market control and price manipulation.
Given that, I side with the 60 million+ file swappers and they have my sympathy, not the RIAA.
You have GOT to be kidding me!!! Whether or not you support homosexual marriage is irrelevent. The fact is that the MA Supreme Court subourned the legislative process. The fact that the court (thinks they) can do this should be setting off red flags for every U.S. citizen! Courts have overturned referendums passed by the populace, over ruled laws passed by the Legislative branch for and generally stepped waaay outside the defined role of the Judicial branch in our government. This is a Bad Thing (TM) for our personal individual freedoms, just in case no one is paying attention.
"Like fire and fusion, government is a dangerous servant and a terrible master."~RAH
"You didn't pay to get the music. Nobody seems to care that some human beings paid for a studio and recorded the music for a record label that distributed it for them. Instead, it's, "Down with RIAA!"
I just don't get the revolution, I guess."
No, you don't get it. The $0.00 price tag isn't what 'the pedantic slashbots' are defending. If that were true, iTunes would not be wildly successful. Instead, what we really want is for the Music Industry to realize there is demand here, and supply it. Instead, they insist we buy their content at a premium, thus paying for content we do not want. (I happen to know for a fact that at some point in your life, you bought an album and only liked a song or two on it.) Since the RIAA is an oligopoly, what they say goes, no matter what consumer demand is. Because that, they have no need to innovate. If they had any real competition whatsoever, we'd have had internet music legitimately for years now.
That's just one facet of the problem. Another one is the whole 'downloading == stealing' crap. Yes, there is a scenario where you can download music, not pay for it, and it would be rightfully called stealing. However, you cannot apply the term 'stealing' as an umbrella term encompassing everybody who downloads music. Why? Simple. How many people are downloading Mp3s of the music they already have so they can just have one big playlist instead of swapping CDs? How many people are downloading a song because they heard it on the radio a million times? Why would downloading the MP3 be worse than hooking a radio up to your computer and capturing it off the airwaves? How many people are browsing, looking for new music to get into? If they download the song, listen 2-3 times, then either stop listening or just delete it, have they really stolen?
Music in the digital age is being stifled. We want music in compressed format. We want our collection to be available at the click of a mouse. We want to be able to get new music off the internet. We want to have matchbook-sized MP3 players so we can toss those huge clunky CD players that only hold an hour music. We want the ability to search for new music and expand our tastes. We want to pay on a per-song basis instead of being forced to buy an album containing music we may not want.
None of these requests are unreasonable. However, the RIAA fought against providing them, calling people thieves in the process. So, the people felt the need to become independent and create their own delivery channel. Illegal? Yes. Immoral? Yes, in a sense. It was also immoral to abuse oligopoly power.
I doubt you'll read my post and instantly agree with me, but I do hope you'll at least reward the time I spent writing this by just considering some of the things I've said. It's really hard to call it stealing when people are obviously willing to spend lots of money on digital music. ($399 for an iPod, for example.)
"Derp de derp."
Marriage is not a right, it is, at best, a tradition or custom. Marriage is defined as being between a man and a woman.
...response...
...response...
Customs and traditions change as society changes. Why should this one be different than any others?
An even better arguement is: If it's a tradition or custom, why does it guarantee special protections under the law? Why do married couples pay less taxes than unmarried couples? Why is it that married couples can get joint health insurance that's significantly cheaper than 2 separate policies? Why can married couples qualify for lower interest rates on house loans.
If it's tradition, let's leave the corporations and government out of it, and make it the sole realm of the churches.
Marriage is 'special'. Places that have allowed same sexed marriages have seen increased divorce and infidelity. Same sexed marriage takes away the 'specialness' of marriage.
Gay sex and marriage are immoral, as are divorce and infidelity. It's no surprise that a place which has one type of immorality has another. So there may be general society problems causing both, it may not be gay marriage itself destroying values.
Gay sex is immoral? How is it any more immoral than straight couples doing it in the butt? Huh? If marriage creates morality out of immorality (ok sex where there was immoral pre-marital sex), then why deny this to gays?
Look, the arguement is "marriage is blah, special, a sacrement, this, that, the other thing". Fine. Whatever. Call that marriage, and call equal protection for couples under the law "civil union".
The arguement stands like thus:
Conservative Preacher: "Gay marriage would ruin the specialness of marriage"
Gays: "Fine, whatever, don't call it marriage. In the mean time, we have a loving, monomogous relationship, and your laws are costing us a lot of money that we wouldn't have to otherwise pay if we were like you".
Conservative Preacher: "Marriage is defined as being between a man and a woman."
Gays: "Dude. Don't call it marriage if it makes you feel better. Whatever. But, whatever the civil, protected by US law equivilancy is, we'd like to have that".
Conservative Preacher: "Same sexed couples cannot have children on their own, therefore they should not have be entitled to the protections of marriage."
Gays: "How does the ability of two people to have children relate to their home loan interest rate? To their need to pay more taxes? To their need for more expensive health insurance (no children should mean less expensive health insurance)?"
Whatever. Every arguement I've heard against gay marriage goes back to the definition of marriage, which is defined in an anti-gay religious sense. However, somehow this has been extended to the law, and it's just stupid. There are 2 parts to a union-between-two-people. One is the part that the church, god, and your parents will recognize. The other is the one that the IRS, blue cross/blue shield, and Century21 will recognize. All that most gay people want is the 2nd part, and they're even willing to not call it marriage, opting for calling it what it really is, a "civil" (or having to do with the law) "union" (partnership of two people).
~Will
sig?
What they're saying is that the LEGAL STATE of marriage should extend to gay couple as well as straight ones. I've yet to see a logical objection to that premise.
I've yet to see a logical explanation as to why the government cares at all about who is married to whom. IMO, the whole problem would just go away if we got rid of marriage licenses, different taxation for married couples, different rules for asset ownership by married couples and all the rest of that claptrap.
Who people choose to live with, sleep with, share their incomes with, etc., is no one's business but theirs.
I happen to think this notion of redefining the term 'marriage' to include homosexual relationships is also rather silly, but the whole thing would be much less of an issue if the government were just taken out of it.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Namely, their approach is you are guilty until proven innocent. This really sucks for those poor saps who are fingered by the RIAA as a theif to be proven innocent, only that person (or family) does not have the means to present themselves in court to proove their innocence. Therefore, they aren't left with much of a choice of action except to pay what they can (usually a hefty amount of their livlihood) and hope the RIAA will leave them alone.
Certainly there are people abusing the systems, but witch hunts have never been the solution. The RIAA also has not attempted to work with the P2P networks (to my knowledge) to resolve this is a civilized way. "Civil" to the RIAA is always followed by "Court". Just as I oppose Microsoft's business practices, I oppose the RIAA's and TicketMaster's and other monopolistic businesses that abuse their power.
Just because a monopoly exists doesn't mean I'm opposed to it straight away. Take the US Postal Service for instance. It goes without saying most people who send snail mail letters (not packages) use the USPS. In that way, the USPS is an effective monopoly. (do we not all go buy a bunch of 1 cent stamps when they bump up the cost of postage?) But aside from bumping up the postage three times in rapid succession in years past, they've been quite good about not *thoroughly* abusing their customers (some may argue when trying to send a package, but I'm talking about letters here).
In the end: does the RIAA have a right to sue copyright infringment? Yes. Do they even have a right to subpoena ISPs for the infringing user's contact information: Maybe (yes, under the Damn Merciless Corruption Act). Is their approach to this technology and even finding out the real infringers severly flawed? Hell yes. (a 12 year old, a Mac owner, and an old couple w/o a computer come to mind.)
...and that's the way the cookie crumbles.
I wish I had mod points -- you are right on. It is NOT the job of the judiciary to MAKE law -- it's the job to interpret the law and make sure it falls within the frame work of the constitution.
Outside of the MA court system, the 9th circuit is a prime example of this jucicial activism abuse. It's stacked liberal 2:1. That means any 3-judge panel is most likely going to end up 2:1 liberal. Talk about stacking the courts. They need to be more MODERATE. It shouldn't be surprising that 3/4's of all appealed 9th circuit judments that get accepted are overturned.
I'd also like to point out that it is NOT the job of the legislature to decide WHO gets to become a judge -- but to decide of they can/are qualified to do the job once nominated by the executive branch.
These are two outragous examples of two branches operating outside the separation of powers.
-jhon
Except that it is the job of the judiciary to intervene if legislation oversteps the power granted to the legislature. The MA court did not specifically legalize gay marriage. What it did was reject, on Constitutional grounds, a law banning gay marriage. It's a fine point, but an important one. It's part of the system of checks and balances. There are more checks and balances--the US Supreme Court can still override them on appeal.
So if I toss in my Dark Side of the Moon CD into the player and only listen to one song am I also doing a disservice to the artist? Should I only be allowed to play the entire contents of the CD, in order?
I see no difference between not being allowed to buy an individual song and not being allowed to play an individual song from a CD you own, other than the excess money the industry gets in the former for things you don't want.
The reverse is that the musician's message may not be the same message you recieve. That is what is so interesting about art, it's not always percieved the same.
So what if you don't get the musician's entire message? Most probably don't, because they percieve things differently. If they want to browse the musician's entire repretoire, then so be it. If they want only one song, there shouldn't be anything preventing you from just having that one song.
Though it's the musician's work, ultimately it's the listener who chooses what the work means. Not the other way around.
Also, if you're only hearing (and therefore interested) in ONE song, then it's probably due to that song being on the radio. That's pretty limited and you might want to expand your horizons past what some large corporation tells you to like.
Interesting. You seem to believe that what the musician wants you to listen to (the whole of the album) is greater than your own decision (regardless of external influences). You say you should expand your horizons past what a large corporation tells you to, shouldn't you also expand past what an individual (or music group) tells you to as well? Seems like you're telling people to bow to one form of external influence than another. Neither should be acceptable. You choose what you listen to, when you listen to, how you listen to.
The freedom to choose is a powerful ideal. It should be upheld in most situations, especially trivial ones such as choice of art.