I'm glad to see that folks are talking about the CS Profs' brief -- after all, I'm the lead lawyer on that brief. '-)
But I would suggest strongly that you look at many of the other briefs available on EFF's site. Respondents' Brief (the one by StreamCast and Grokster) is the most important, and there are many high quality amicus briefs. Eben Moglen, who wrote on behalf of FSF, has some great lines in his; and there are many other excellent ones.
The Recording Industry Association of America ("RIAA") has moved to enforce a subpoena served on Verizon Internet Services ("Verizon") under the Digital Millennium Copyright Act of 1998 ("DMCA" or "Act"), 17 U.S.C. 512. On behalf of copyright owners, RIAA seeks the identity of an anonymous user of Verizon's service who is alleged to have infringed copyrights with respect to more than 600 songs downloaded from the Internet in a single day. The copyright owners (and thus RIAA) can discern the Internet Protocol address, but not the identity, of the alleged infringer -- only the service provider can identify the user. Verizon argues that the subpoena relates to material transmitted over Verizon's network, not stored on it, and thus falls outside the scope of the subpoena power authorized in the DMCA. RIAA counters that the subpoena power under section 512(h) of the DMCA applies to all Internet service providers, including Verizon, whether the infringing material is stored on or simply transmitted over the service provider's network.
The case thus presents a core issue of statutory interpretation relating to the scope of the subpoena authority under the DMCA. The parties, and several amici curiae, agree that this is an issue of first impression of great importance to the application of copyright law to the Internet. Indeed, they concede that this case is presented as a test case on the DMCA subpoena power.Based on the language and structure of the statute, as confirmed by the purpose and history of the legislation, the Court concludes that the subpoena power in 17 U.S.C. 512(h) applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user. Therefore, the Court grants RIAA's motion to enforce, and orders Verizon to comply with the properly issued and supported subpoena from RIAA seeking the identity of the alleged infringer.
i don't read the word "wilfull" in the DMCA, so i have no idea of how this case could have come out this way.
As a criminal prosecution, the court needed to focus not only on 1201, but also on 1204, which states in part):
Sec. 1204. Criminal offenses and penalties (a) In General. - Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain -
(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
That's where willful comes in, straight from the DMCA
To my knowlege, he never responded; and as a friend of John and one of Karl's lawyers, it's likely that I would know if he had.
OTOH, ICANN tried to use the letter against Karl in the court case. Properly, the court ruled that John's letter could not be attributed to Karl - without regard to whether Karl agreed with what John said.
Breaking DVD encryption is already a DMCA violation in the 2600 case if I recall. And if the product breaks the DVD encryption, it violates the DMCA by a set precadent. Keep in mind, I have no problem backing up DVDs for personal use that is allowed under Fair Use(and I hate warez kiddies), but 321 has it's work cut out for them:-(
One thing to consider, for those who just can't get enough of the legal system, is that the 2600 case was in federal court in New York, with the appeal to the Second U.S. Circuit Court of Appeals. The new case is in federal court in San Francisco, and if there is an appeal, it will go to the Ninth U.S. Circuit Court of Appeals.
Rulings from one federal circuit are not binding on either trial or appellate courts in other circuits. The court(s) in the 321 Studios case may or may not be influenced by the rulings in the 2600 case, but they are not bound by them.
A director may rely on that which management may choose to spoon feed him, a director is not required to look at everything himself. But if a director wants to look at more than what management chooses to show him, a director has the right to see and copy all corporate records and documents.
Ya know...I was on Chip's side until I saw in the complaint that he requested $50,000 for the domain. This negates any sympathy from me.
The Complaint alleged that Chip tried to sell the name. That's very different from the actual fact, which is that Chip never tried to sell the name. Read the e-mail exhanges between Chip and Corry Hong, attached to Chip's declaration in support of the motion to dismiss, up at save.unicom.com
Kinda scary, the guy is reported dead five minutes after posting a reply in this thread. Makes you wonder how safe slashdot really is. Now I'll definately be looking over my shoulder every time I hit that submit button.
Going through the ICANN dispute resolution system? Have you?
No, they didn't go through ICANN. (Allegedly) aggrieved domain name owners can either use the ICANN UDRP or go to court, they're not required to use the ICANN procedures first. These folks chose to go to court first.
As for Chip, he would have no reason to go to ICANN. unicom.com is his domain name, he isn't contesting that the Plaintiff can keep its name, unicomsi.com.
We did win (I'm one of Chip's lawyers, so I can say "we"), but the thing isn't necessarily over yet.
Chip is in Austin, Texas, but the Plaintiff sued him in Los Angeles.
When we responded to the Complaint, we made several alternative motions, one being that a court in California lacked personal jurisdiction over Chip, not only because he's in Texas, but also because he does not have sufficient contacts with California to make it reasonable for him to be dragged into court here.
The Court granted our motion to dismiss for lack of personal jurisdiction. That's a big victory, there's much to be said for the proposition that courts do not have unlimited reach, even when the Internet is involved (think Matt Pavlovich and the California DVDCCA case, for example), but it isn't a ruling on the merits.
If Plaintiff should choose to file a new action against Chip in Austin, we have plenty of ammunition for arguing the merits of his rightful claim to the unicom.com domain name, but readers should not assume that this win addressed that issue. The Court's ruling is here.
While I pretty much agree with everything ElcomSoft established in its brief (DMCA violates free speech, fair use, etc.), I can't help but thinking that we're headed down the same road, and that a federal judge will take one look at the complaint and dismiss it. The Felton case look like a perfect challenge, and look how far that trial got.
There is a major difference between the Felten case and this one.
In Felten, the judge never addressed the merits of the DMCA argument, finding instead that there was no case or controversy, because the threats were either withdrawn or misunderstood. Here, Elcomsoft specifically has been charged with violating the DMCA, so the threshhold jurisdiction question which the Judge found in Felten will not be an issue at all here. Unless the charges are dropped in this case or there is a plea, the Court cannot avoid addressing the constitutionality of the DMCA.
Reading the comments so far, there seems to be a basic misunderstanding of what is happening in the case. Awhile ago, the judge set a briefing schedule for briefs on different issues. Yesterday, ElcomSoft filed two briefs, but that filing comes after the two briefs which it filed on January 14, including one which specifically raises the issue of ElcomSoft being a Russian company.
These briefs raise issues in the alternative: If ElcomSoft loses on one, it preserves the right to argue the other, but it hasn't given up the right to pursue any viable legal theory.
The lawsuit proceeds. Somewhat by coincidence, our latest set of court papers were finished today, look for them on EFF's site later today or tomorrow.
Threatening letters to people who satirize you, hoping
they won't know the law: $500
The Letter came from Baker Botts, a huge Texas-based law firm. (Y'all remember GWB's front man, James Baker, don't you?) No way they scratch for $500, probably the letter cost more like $5,000.
..everything was going well until John Ashcroft (R, Attorney General) broke up the meeting on the grounds
that music lead the dancing, and dancing lead to dirty, evil, lustful thoughts.
Completely untrue, actually. When Ashcroft was in the Senate, he led a group of singing Senators. If one searches hard enough, one can find some of his tunes on the Net in MP3. I've heard worse.
And BTW, if anyone wants to read the transcripts of the hearing, here they are.
... is that ET would not be able to copyright his story.
"At the very least, for a worldly entity to be guilty of infringing a copyright, that entity must have copied something created by another worldly entity."
Urantia Foundation v. Maaherra
114 F.3d 995 (9th Cir. 1997)
So, we've sorted out by now that it is CIPA, not COPA, though I don't think anyone has pointed out that it is ACLU and the American Library Association, not EPIC.
If anyone wants an actual, real link to CIPA to see what it says, here.
In the briefs on appeal, neither side made much of an issue of whether Plaintiffs had standing to bring this challenge. (Standing is a threshhold matter, not just anyone can challenge anything, a court will only reach the merits if the party bringing the challenge has standing to do so).
In oral argument, though, the question of whether Plaintiffs had standing under the First Amendment to bring this challenge became a very big issue indeed, to the point that some were worried that the case might be lost on that ground.
While no real solace to the Plaintiffs here, the Court found that there was a sufficient nexus to the harm which Plaintiffs might suffer so that they did have standing to challenge CTEA. That part of the decision, which was unanimous, certainly can be helpful in other contexts relevant to the kinds of matters often discussed in YRO.
It's a good brief, and it's especially worth reading if you think no lawyer can write anything except
impenetrable jargon.
Thanks - since I'm the lawyer who wrote the brief.;-)
My favorite part of the brief is footnote 4, which compares source code to legal citation:
each is impenetrable to outsiders, but each is a clean, compact, and efficient representation, which is
transparent to people who speak the language.
I started law school in 1975, but I still remember my reaction when I saw my first case citation, something like "What the HELL is that?"
To whatever extent peole like the brief, though, I take only some of the credit. The amici helped me a lot, of course, and at the top of my help list was Seth Finkelstein, a friend and excellent programmer.
There will be more amicus briefs in support of 2600, due Friday. I just needed to get mine in early because of my own schedule.
Remember that this is just the first round of appellate briefs, so four months is not that far away. Next Friday is the due date for amicus curiae (friend of the court) briefs in support of 2600, of which there will be several (including mine). Then, the studios do their brief in a month from now. A week after, their amici file, then 2600 does a reply brief. So the interval from the last brief to the oral arguments is not that great.
Slashdot Mirror
Doesn't matter if it's baseless and would get tossed out of court -- eventually. The former database maintainer didn't have the budget to fight back.
If you want to blame someone, blame the "justice" system that allows frivolous lawsuits to be filed in the first place.
EFF is representing Arthur D. Olson (the former database maintainer).
But I would suggest strongly that you look at many of the other briefs available on EFF's site. Respondents' Brief (the one by StreamCast and Grokster) is the most important, and there are many high quality amicus briefs. Eben Moglen, who wrote on behalf of FSF, has some great lines in his; and there are many other excellent ones.
MEMORANDUM OPINION
The Recording Industry Association of America ("RIAA") has moved to enforce a subpoena served on Verizon Internet Services ("Verizon") under the Digital Millennium Copyright Act of 1998 ("DMCA" or "Act"), 17 U.S.C. 512. On behalf of copyright owners, RIAA seeks the identity of an anonymous user of Verizon's service who is alleged to have infringed copyrights with respect to more than 600 songs downloaded from the Internet in a single day. The copyright owners (and thus RIAA) can discern the Internet Protocol address, but not the identity, of the alleged infringer -- only the service provider can identify the user. Verizon argues that the subpoena relates to material transmitted over Verizon's network, not stored on it, and thus falls outside the scope of the subpoena power authorized in the DMCA. RIAA counters that the subpoena power under section 512(h) of the DMCA applies to all Internet service providers, including Verizon, whether the infringing material is stored on or simply transmitted over the service provider's network.
The case thus presents a core issue of statutory interpretation relating to the scope of the subpoena authority under the DMCA. The parties, and several amici curiae, agree that this is an issue of first impression of great importance to the application of copyright law to the Internet. Indeed, they concede that this case is presented as a test case on the DMCA subpoena power.Based on the language and structure of the statute, as confirmed by the purpose and history of the legislation, the Court concludes that the subpoena power in 17 U.S.C. 512(h) applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user. Therefore, the Court grants RIAA's motion to enforce, and orders Verizon to comply with the properly issued and supported subpoena from RIAA seeking the identity of the alleged infringer.
As a criminal prosecution, the court needed to focus not only on 1201, but also on 1204, which states in part):
Sec. 1204. Criminal offenses and penalties
(a) In General. - Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain -
(1) shall be fined not more than $500,000 or imprisoned for not
more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
That's where willful comes in, straight from the DMCA
OTOH, ICANN tried to use the letter against Karl in the court case. Properly, the court ruled that John's letter could not be attributed to Karl - without regard to whether Karl agreed with what John said.
The case was filed a few months ago, but the motion (for summary judgment) which the story references is new. I am fairly certain of this because:
1. The press release is dated today;
2. The memorandum in support of the motion is dated today; and
3. I'm Karl's lawyers. ;-)
See also Karl's Declaration in support of the motion.
I read the page. Is "Slashdot made me do it" a good defense?
One thing to consider, for those who just can't get enough of the legal system, is that the 2600 case was in federal court in New York, with the appeal to the Second U.S. Circuit Court of Appeals. The new case is in federal court in San Francisco, and if there is an appeal, it will go to the Ninth U.S. Circuit Court of Appeals.
Rulings from one federal circuit are not binding on either trial or appellate courts in other circuits. The court(s) in the 321 Studios case may or may not be influenced by the rulings in the 2600 case, but they are not bound by them.
-J, not all lawyers, but Karl's lawyer
The Complaint alleged that Chip tried to sell the name. That's very different from the actual fact, which is that Chip never tried to sell the name. Read the e-mail exhanges between Chip and Corry Hong, attached to Chip's declaration in support of the motion to dismiss, up at save.unicom.com
The reports of my death are greatly ....
When did this happen? Why wasn't I told?
I am not rolling cigars in Tampa, or anywhere.
No, they didn't go through ICANN. (Allegedly) aggrieved domain name owners can either use the ICANN UDRP or go to court, they're not required to use the ICANN procedures first. These folks chose to go to court first.
As for Chip, he would have no reason to go to ICANN. unicom.com is his domain name, he isn't contesting that the Plaintiff can keep its name, unicomsi.com.
Chip is in Austin, Texas, but the Plaintiff sued him in Los Angeles.
When we responded to the Complaint, we made several alternative motions, one being that a court in California lacked personal jurisdiction over Chip, not only because he's in Texas, but also because he does not have sufficient contacts with California to make it reasonable for him to be dragged into court here.
The Court granted our motion to dismiss for lack of personal jurisdiction. That's a big victory, there's much to be said for the proposition that courts do not have unlimited reach, even when the Internet is involved (think Matt Pavlovich and the California DVDCCA case, for example), but it isn't a ruling on the merits.
If Plaintiff should choose to file a new action against Chip in Austin, we have plenty of ammunition for arguing the merits of his rightful claim to the unicom.com domain name, but readers should not assume that this win addressed that issue. The Court's ruling is here.
There is a major difference between the Felten case and this one.
In Felten, the judge never addressed the merits of the DMCA argument, finding instead that there was no case or controversy, because the threats were either withdrawn or misunderstood. Here, Elcomsoft specifically has been charged with violating the DMCA, so the threshhold jurisdiction question which the Judge found in Felten will not be an issue at all here. Unless the charges are dropped in this case or there is a plea, the Court cannot avoid addressing the constitutionality of the DMCA.
-J, one of the Felten team lawyers
These briefs raise issues in the alternative: If ElcomSoft loses on one, it preserves the right to argue the other, but it hasn't given up the right to pursue any viable legal theory.
The lawsuit proceeds. Somewhat by coincidence, our latest set of court papers were finished today, look for them on EFF's site later today or tomorrow.
-J, one of the Felten team lawyers
-J, Born in East L.A. (before many of your parents were born)
Not quite. Brad's response included:
The Letter came from Baker Botts, a huge Texas-based law firm. (Y'all remember GWB's front man, James Baker, don't you?) No way they scratch for $500, probably the letter cost more like $5,000.
Completely untrue, actually. When Ashcroft was in the Senate, he led a group of singing Senators. If one searches hard enough, one can find some of his tunes on the Net in MP3. I've heard worse.
And BTW, if anyone wants to read the transcripts of the hearing, here they are.
"At the very least, for a worldly entity to be guilty of infringing a copyright, that entity must have copied something created by another worldly entity."
If anyone wants an actual, real link to CIPA to see what it says, here.
In oral argument, though, the question of whether Plaintiffs had standing under the First Amendment to bring this challenge became a very big issue indeed, to the point that some were worried that the case might be lost on that ground.
While no real solace to the Plaintiffs here, the Court found that there was a sufficient nexus to the harm which Plaintiffs might suffer so that they did have standing to challenge CTEA. That part of the decision, which was unanimous, certainly can be helpful in other contexts relevant to the kinds of matters often discussed in YRO.
Oh, someone did.
But I think it's another joke.
"In order to be inherently distinctive, the trade dress must be either arbitrary or suggestive..."
(Cmdr)Taco Cabana Int'l, Inc. v. Two Pesos, Inc.
932 F.2d 1113 (5th Cir. 1991)
Thanks - since I'm the lawyer who wrote the brief. ;-)
My favorite part of the brief is footnote 4, which compares source code to legal citation: each is impenetrable to outsiders, but each is a clean, compact, and efficient representation, which is transparent to people who speak the language.
I started law school in 1975, but I still remember my reaction when I saw my first case citation, something like "What the HELL is that?"
To whatever extent peole like the brief, though, I take only some of the credit. The amici helped me a lot, of course, and at the top of my help list was Seth Finkelstein, a friend and excellent programmer.
There will be more amicus briefs in support of 2600, due Friday. I just needed to get mine in early because of my own schedule.
Remember that this is just the first round of appellate briefs, so four months is not that far away. Next Friday is the due date for amicus curiae (friend of the court) briefs in support of 2600, of which there will be several (including mine). Then, the studios do their brief in a month from now. A week after, their amici file, then 2600 does a reply brief. So the interval from the last brief to the oral arguments is not that great.