Controversial Section of PRO-IP Act Cut

I Don't Believe in Imaginary Property writes "Rep. Berman (D-CA) has removed the controversial section 104 from his PRO-IP Act. That section would have multiplied the already excessive statutory damages for infringement in the case of compilations, making the damages for infringing upon the copyrights of a single average CD rise into the millions of dollars. This change came after proponents of the amendment were unable to cite even one case where the statutory damages recovered were insufficient. But don't let the article fool you into thinking that the PRO-IP Act is no longer controversial now that this one section is gone, the act still creates copyright cops who are authorized to seize people's computers."

Comments

Time for the old Dead Man's Switch

[Gothmolly]

Nothing Cryptonomicon-esque, just some s/w will do the trick. Sieze away, Mr. Gestapo. All sorts of nice 1s and 0s for you to look through.

Re:Time for the old Dead Man's Switch

[palegray.net]

You could always TrueCrypt encrypt the contents of your drive to guard against seizure efforts without hampering your own use of the system.

Re:Time for the old Dead Man's Switch

[Joe U]

Last time I checked the burden of proof was on the prosecution. They may have fixed that recently, so I could be wrong.

Re:Time for the old Dead Man's Switch

[QuantumG]

When it comes to complying with a court order to turn over computer files, turning over encrypted computer files is not complying with the order. It's really not that hard.

Re:Time for the old Dead Man's Switch

[hedwards]

Passwords, pass phrases and keys are, for better or worse, considered to be protected by the 5th amendment.

Unless law enforcement or the copyright holder can crack the security on it, there is no way that they can compel a person to hand over the files at this point.

Re:Time for the old Dead Man's Switch

[QuantumG]

Do you have any case law to back this up or are you just talking out of your ass? Seriously, the courts see it no different to requiring you to hand over the keys to a filing cabinet. You're free to refuse, at which time you are in contempt of court and will be spending the remainder of your life in jail, except for every 30 days, when you will be brought before the judge to be asked if you are now ready to hand over the keys.

or the copyright holder Huh? What do you think we're talking about?

Re:Time for the old Dead Man's Switch

[Cairnarvon]

http://www.news.com/8301-13578_3-9834495-38.html

So yes, case law does back it up.

Re:Time for the old Dead Man's Switch

[digitrev]

No one. But you can easily claim that, with all the various laws on the books, including laws that haven't been examined in years, that you could breaking laws you don't even know about. Hence, pleading the fifth.

Re:Time for the old Dead Man's Switch

[Wordplay]

No, he's informed. What's your excuse?

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

"The U.S. Supreme Court has ruled that the right against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924))."

And more specifically,

http://www.sorrelsudashen.com/papers/Fifth_Amendment_Right_Against_Self_Incrimination_in_Civil_Cases.pdf (pdf)

McCarthy v. Arndstein, 266 U.S. 34 (1924) Privilege against self-incrimination under the Fifth Amendment "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it."

If copyright violation didn't have a criminal component to it, you might be right. But it does, particularly since the DMCA specifically criminalized copyright violations of digital material.

Re:Time for the old Dead Man's Switch

[edumacator]

I'm always surprised at how quickly people jump to ad hominem attacks. Even if the grandparent to this post was completely wrong, which he isn't, you immediately accuse him of being a moron or a sinister plotter. All he's doing is disagreeing with you. I would hope we could still do that civilly.

Re:Time for the old Dead Man's Switch

[The Master Control P]

The main point of TrueCrypt (as I understand it) being that it's impossible for the prosecution to provide any evidence that what they see isn't everything you've got. No evidence you aren't complying = no leg to stand on.

Me? I'd keep anything "they" are after on a mini-sd card (hell, they're so small you can almost legitimately claim that you lost it). If all else fails and you get a suprise warrant at 3am, you could even stick it up your ass as a last resort. As long as you don't do something stupid like put the card in /etc/fstab or (more likely) fail to scrub /tmp before powerdown you win: There is no evidence what so ever that the files in question were ever present.

Re:Time for the old Dead Man's Switch

[mazarin5]

Testimony, not evidence. Consider that you can be compelled to give a blood sample for DNA evidence. They can even arrest and restrain you and forcible extract the blood. This is not considered self incrimination by the court. A password is not testimony, it's necessarily to the acquisition of evidence.

Of course, this must have been tested at some point. Are there any law scholars that can provide a more specific example?

Re:Time for the old Dead Man's Switch

[Wordplay]

Passkey-as-testimony was covered a couple of parents up; the precedent's been set. This subthread is from QuantumG suggesting that the same protection doesn't apply to civil court.

Re: DNA vs. passkey, the generality seems to be that in security terms, "what-you-are" or "what-you-have" factors are evidence (they can be taken with a warrant) but a "what-you-know" factor is testimony and cannot be forcibly extracted from you (Fifth Amendment).

Re:Time for the old Dead Man's Switch

[HTH NE1]

If they need someone's files to convict someone else, they can grant immunity for anything found in those files that may incriminate the owner to negate the Fifth Amendment barrier.

However, they still have sneaky tricks, like only granting immunity at the state level and not federal, or not international so you're effectively barred from travel to certain countries for, say, having cartoons of a particular religious leader. And they'll still put you on their radar in case you acquire any similar incriminating thing later, which will be a separate crime(*). And then there's that whole confiscation issue too.

(*) I don't think "fruit of the poisonous tree" applies. If someone with immunity testifies to a murder, it's a matter of public record and that person will still be looked at as a suspect for other, similar murders. Immunity does not grant freedom from suspicion. Further, you can be compelled to testify if granted immunity from prosecution even though testifying will still get you killed; witness protection is not perfect nor is it a cushy life forever. Nor does prison for contempt for refusal to testify guarantee continuity of your life.

Unless there's some way to make disclosure under an evidentiary seal requiring anything self-incriminating be treated as it never existed. And reality still just doesn't work that way.

Re:Time for the old Dead Man's Switch

[vuffi_raa]

The main point of TrueCrypt (as I understand it) being that it's impossible for the prosecution to provide any evidence that what they see isn't everything you've got. No evidence you aren't complying = no leg to stand on. providing encrypted files is compliance so long as you have the decryption key provided as well or can show an attempt to provide the key- the fact of the matter though is that if all of your data is encrypted the cost for discovery in a civil case would be so high that it would be ridiculous to pay for it (that would be the burden of the litigant and not the defense- defense would only have to provide the data post discovery in compliance with the submission by the litigant (or opposing counsel) so you could theoretically turn over the drive and it would be up to whoever is suing you to decrypt the drive- in the realm of e-discovery there are only certain vendors that handle encryption and that would be in the forensics and not in your standard lit support vendor/service beaurau, so the cost would be generally high per piece of media. Following this the review process would be pretty high as well considering the price point that we charge at our company usually comes out to $1-3 per doc give or take (depending on the client, population, etc.) after all is said and done and that is 1/2 to 1/3 of the standard rate for edoc reviewing at most companies (we have a damn fine stat on recall and precision as well) so imagine that you have a couple of terabytes of data at home which isn't hard considering you can drop a terabyte in your desktop nowadays, the cost that would be incurred during the discovery process alone would be pretty high for say, the RIAA to sue someone who not only will never have the $ to pay on a suit, but also may or may not even have any files that are incriminating. When it comes down to it the economics on consumer IP cases make zero sense, unlike corporate B2B, where you are actually looking to recover losses on a product base and are assured a return on a ruling or settlement.

Good example.

[palegray.net]

This is a good example of the fact that both major parties play these games with our civil liberties. As much time as people spend bashing the Republican party over privacy invasion and big business backroom deals, it's good to remember that the Democrats play the same games every day. Perception is a funny thing.

Re:Good example.

[calebt3]

Rep. Berman (D-CA) has removed the controversial section 104 from his PRO-IP Act.

How could statutory damages ever be insufficient?

[John Hasler]

How could statutory damages ever be insufficient when the copyright owner has the option of proving actual damages?

Re:How could statutory damages ever be insufficien

[palegray.net]

IANAL, but IMHO, and it may be soon to tell, given current circumstances, but notwithstanding alternate outcomes, that I have absolutely no idea how to respond to your question. But look at the silly monkey!

Just the latest in a long list of malfeasance ...

[ScrewMaster]

Berman should be forcibly removed from office for the things he's already done. They can take Howard Coble and Orrin Hatch along with him. We the People have no use for them.

WalMart

[Anonymous Coward]

making the damages for infringing upon the copyrights of a single average CD rise into the millions of dollars. ...and yet, if you just physically steal one, no one cares near as much. Whatever floats their boat, I guess.

Re:WalMart

[bky1701]

Of course. Physical theft hurts businesses, especially small ones. On the other hand, piracy threatens the control of the media giants. Who do you think has more lobbying power?

Re:Copyright Cops Maintaining an environment of fe

[Arterion]

Fear is the Antichrist

I thought fear was the mind-killer.

I remember

[hyades1]

"Yes, Billy, it's true. The United States wasn't always a fascist dictatorship. Actually, the proper term is oligarchy, but I won't bore you with all that stuff now. Anyway, there was a time when the people in office actually cared, some more than others, about the ideals that made it a good place to live. And, no, there was no invasion. Our people just gave it all away, a little at a time, by always voting for politicians who promised to make the country a safe place for children and kittens. It's safe now, Billy...just as long as you do exactly as you're told."

Re:I remember

[Omestes]

Our people just gave it all away, a little at a time, by always voting for politicians who promised to make the country a safe place for children and kittens

I know I'm replying to your rather flippant remark with something serious, but why are we doing this? The other democracies in the world seem to have veered in a more liberal direction (liberal, not by the American definition). What makes the Americans MORE susceptible to welcoming a tyranny with open arms? I would have thought it the opposite, being one of the most violently individualistic countries on earth.

The average American, it seems, is the epitomy of sheep, anti-education, anti-freedom, and pro-tyranny, and not just our tyranny, but the tyranny of everyone else too. How did this happen, for a large part our founding fathers were ideal freethinkers (minus Adams), and liberals (again in the non-modern American sense), but somehow we've turned into the modern Soviets. This confuses the hell out of me.

How the hell did Europe (and Canada) beat us at our own, original, game?

How did France, Canada, the Nether

Re:I remember

[hyades1]

Wish I could give you an answer. I'm Canadian, and I don't much like the direction my country is heading in at the moment, either.

I've forgotten what our Prime Minister looks like, it's been so long since he pulled his face out from between Bush's ass cheeks.

Re:I remember

[moxley]

This is no accident. There has been manipulation and paranoia based behavior control.

"We were attacked" "by evil terrorists" (the fact of who those "evil terrorists" actually are or whether it was some bullshit storybook conspiracy that completely falls apart and lacks credibility if you have half a brain OR was a manipulation in the first place doesn't matter because the effects are the same with how it is being used).

People are being made to feel like there is danger coming at them from all corners at all times. The fear has been ratcheted up constantly and is bombarding this TV addicted country relentlessly; and the internets is the newest place where terrible things can happen to you, your family, and the country (according to the TV).

If you can find 4 or so hours of pre-recorded mainstream network television (including news and the ever ubiquitous crime drama) from ten years ago (it was still total trash but not the same trash we have today) - watch it - then, watch the same amount of today's television and I think you'll see that there is a very noticable difference.

The people driving the bus that is America want you to feel as though you're on a roller coaster that is careening off the rails all at times sourrounded by foreigners with rocket launchers just waiting for their chance to blow you away and next they're going to be trying to convince you that the neighbor on your left (who looks you) is in league with those "terraists" and the neighbor on your right is going to go off of his meds and shoot up your kid's school.

When people are this scared they make bad decisions. When people are this scared they'll allow things they would NEVER allow (like giving up their rights and taking a "I don't care, lock 'em up or torture 'em, it's not me or my family who will be affected" attitude)...The fact that this country would even talk about being okay with indefinite incarceration without charge and torture (let alone actually allowing or making it fucking policy) is disgusting and unbelevable and would have never been possible without this scheme. The thing most people don't get is that it already is affecting the entire society and it will affect them and those they care about because the definition of "terrorist" and what is considered is "terrorism" is being changed - look at the homegrown terrorism act for one thing..

People wonder how Germany was transformed in the 30s...I don't wonder anymore.

Re:I remember

[Omestes]

I don't think the current atmosphere is to blame, though it exasperated the situation. I came of age at the tail end of the cold war, and we were still ruled by the same fear as we are today (albeit more based in reality), In the 90's, after the end of the cold war, we still managed to be ruled by wankers (Clinton, and the birth of neo-cons), but this was not fear based wankerism. Bush I and Clinton were both in a time of naive optimism, but we STILL voted the the extreme right into control.

Really the down fall of American politics can probably be traced to the Truman administration, if not before.

Remember before the current USAPATRIOT act mentality we had McCarthy and J.Edgar Hooverism. Islamic extremists are nothing more than the new International Communist Conspiracy. I guess (barring the unexplanable wankerism of the 90's) fear can be the main effect, which still begs the question "why are we so afraid?".

Not to sound to paranoid, I'm still sad to admit that I can see ourselves being the bad-guys of the next century, taking Germany and the USSR's place. I want to love my country, I really want to, but I have no shared values with America anymore, it seems. This depresses the hell out of me. For Pete's sake, we actually are arguing about the merits of torture, this is the sign of a whole country jumping the shark.

Re:War on Copyright

[QuantumRiff]

The sad thing is, that 1% of the population is already in jail. The highest incarceration rate in the world. But we think were safer. Do you think a 10-fold increase in people in jail will lead to an overhaul of the system, or just become a nice way to ensure lots of jobs as Prison Guards for the local economies?

Re:Just the latest in a long list of malfeasance .

[Obyron]

We the People keep reelecting them. Blame California, North Carolina, and Utah. (and blame Canada)

Re:War on Copyright

[wk633]

1% of adults, not of the general population. Not that it affect your point.

This should be alarming

[sltd]

They're beginning to make compromises. With this controversial section removed, it's just that much closer to becoming a law, which is bad for everyone.