Justice Stevens wrote the majority opinion in United States v. Hubbell, 120 S.Ct. 2037
(2000), which held that Defendant’s assembly of documents, in response to the government
grand jury subpoena, violated his privilege against self-incrimination, even though he had
been provided with testimonial immunity with regard to the production of the documents.
Justice Stevens explained:
The assembly of those documents was like telling an inquisitor the
combination to a wall safe, not like being forced to surrender the key to a
strongbox.
The court's argument is that, unless your password is "I shot JFK", then your password is not incriminating. The password will never be used against you, and thus can be compelled. That it can be used to recover material against you is not something the court considers relevant.
The fact that you knew the password is incriminating if there is evidence on the encrypted volume. It proves you had control or at least access to the contents.
Wouldn't this be a 4th amendment issue instead of a 5th amendment?
If you are compelled to hand over the password it's pretty much the same as handing over physical keys.
I'd attack this on grounds of search and seizure, not self incrimination.
The 4th amendment prohibits unreasonable search and seizure and requires probable cause to obtain a warrant.
Here, there is a warrant. No one is attacking the validity of that warrant. The State is permitted to perform the search, so there is no 4th amendment issue. However, they want to force the defendant to divulge incriminating information to assist their criminal investigation. That definitely implicates 5th amendment concerns.
How about first to do both. You would have to have an invention before you can file. Otherwise, I'm patenting time travel.
Then who would win if one party proves first invention and the other proves filing first? There's no logical inconsistency in that. They both independently develop the same invention prior to either filing and the second party to invent is the first party to file.
This law is a good thing. It's just not the good thing that we wanted when we heard "patent reform."
I'm not aware of any legal theory that supports this position. Regardless of who has the contract with the ISP, the liability lies with the party that actually infringed on the copyright(s) in question. It is true that the suit would originally be filed against the account holder, since they have to start somewhere, but if they can't show the defendant was the person who actually infringed their copyright, they will not prevail. The MAFIAA have attempted to spread all sorts of FUD about account holders being responsible for the activities of all users, but it's a bunch of nonsense. They would have you believe that Starbucks is responsible for everything that happens on their open WIFI, too. How many suits have you heard of against Starbucks for this sort of thing? Zilch, right? They'll never file suit because it would only establish a solid precedent that account holders do have have liability for the actions of other users.
Keep in mind, though, the burden of proof is a preponderance of the evidence (>50%) and many judges/juries are not especially well technologically educated. Personally, I would unplug or cut his ethernet cord if he insisted on doing this crap without taking precautions, but if you're nicer than me at least make sure that your computer is completely separate from his. You may need to testify at some point that you never use his computer and he's not allowed to touch yours. I'd also at least password protect your computer (ideally encrypt that shit) so he doesn't go "borrowing" it. Your computer's hard drive should be pristine. If he does attract a lawsuit, you better believe it's going to be searched.
Federal Rule of Civil Procedure 26
(b) Discovery Scope and Limits.
(1) Scope in General.
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
To reiterate: relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
In other words: if it probable that searching your mom's/roommate's/girlfriend's laptop might lead to evidence in their copyright lawsuit, a plaintiff can go ahead and do so. Please keep this in mind. I always thought it was obvious that every computer or storage device in a household would be subject to search during a copyright infringement lawsuit. If this is surprising to anyone, I guess it is good that we have a story about it. IAAL, and this is not a controversial position. I wish it were otherwise, but FYI, there it is.
Ditto here. I find it especially helpful with niche RPG products. I love the Pathfinder series of RPG books (based on 3.5 D&D), but not all of them are worth buying. They aren't popular enough to rely on Amazon reviews, and they don't even enable the "look inside" feature. After downloading basically their entire library, I've been steadily buying hardcopies of the best books.
Without the ability to take my time and evaluate the products, I certainly wouldn't have bought any of them. This is incentivizing publishers: Good adventure Pazio, here's fifteen bucks. Bad collection of magic items thrown together without much thought: no money for you.
"BMV Communications Director Dennis Rosebrough said if a criminal went to get a driver's license under his name, the criminal's photograph would be compared to an old photograph of Rosebrough and the BMV could be alerted the next day that the two don't match."
Just so everyone is clear. BMV WILL ISSUE the driver's license. Then they will find out the NEXT DAY that the photos don't match. God knows what they will do then. If you think they will attempt to call you, get real. Most likely, they will suspend or invalidate the license number, and require you to come in and prove up your identity and pay for reinstatement.
Of course, they will just mail that notice to the last address on file. If you haven't kept BMV updated on your address(who does?) it will go to your old address. There is no requirement in Indiana that you *actually* be notified of suspension/revocation/invalidation. If they BMV mails it, then you are effectively notified.
So when you get pulled over and your car is towed and you are ticketed because the officer believes your license is suspended, think to yourself, "Thanks for protecting my identity, BMV."
And some jerk still gets a driver's license with your name on it! What is the point of this?
Although the obvious (and most fun) question would be "Why can't you testify to the [same general material] in the Netherlands and Canada?"
I guess that among the numerous great queries previously posted, I would be interested to know:
Which programs were used to obtain the files which have been allegedly shared (or made available for distribution) by the defendant (screenshots will help here - post them if you don't recognize them or if you believe they may be altered - we will help), and whether the manner of usage by the plaintiffs was in compliance with the license agreement of said software and state (and federal) law. I haven't read the response to the interrogatories provided by the RIAA for a month or more, but from what I do recall, it seemed that they avoided specific responses about what software was being used. If I recall correctly, they simply stated that they used the "same software as a typical user" and accessed files "as the typical user would."
I believe, from the links provided in the initial post, that this suit was filed in a state court in the state of new york. Although I am not licensed as an attorney in that state, based on my experience in other states, I would be surprised if NY had not outlawed something along the lines of "unauthorized access of a computer system." Typically, this would include falisifying your identity for the purpose of obtaining access to particular files (or access of the system in general). Of course, this would only be important if NY has a statute that would prohibit the introduction of evidence in a civil trial of evidence that was obtained in a fashion that is illegal (or, more broadly, in contravention of public policy). It has been my experience that most software (e.g. Kazaa lite++) both prohibits usage of the software for the intentional violation of the copyright law, and probibits the use of the software for the purpose of ascertaining the identity of other users. Read that license with a fine-tooth comb.
As a last resort, based on the responses to the above question, I would consider an in pari delitico argument. The RIAA violated copyright law (probably - or at least a license agreement) to obtain the evidence for trial, and they ought not benefit from such a tactic.
Slashdot Mirror
Justice Stevens wrote the majority opinion in United States v. Hubbell, 120 S.Ct. 2037 (2000), which held that Defendant’s assembly of documents, in response to the government grand jury subpoena, violated his privilege against self-incrimination, even though he had been provided with testimonial immunity with regard to the production of the documents.
Justice Stevens explained:
The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.
Hubbell at 2047.
A citation for the proposition that the State can force you to hand over the key to a safe would be nice to have around too.
The court's argument is that, unless your password is "I shot JFK", then your password is not incriminating. The password will never be used against you, and thus can be compelled. That it can be used to recover material against you is not something the court considers relevant.
The fact that you knew the password is incriminating if there is evidence on the encrypted volume. It proves you had control or at least access to the contents.
Wouldn't this be a 4th amendment issue instead of a 5th amendment?
If you are compelled to hand over the password it's pretty much the same as handing over physical keys.
I'd attack this on grounds of search and seizure, not self incrimination.
The 4th amendment prohibits unreasonable search and seizure and requires probable cause to obtain a warrant. Here, there is a warrant. No one is attacking the validity of that warrant. The State is permitted to perform the search, so there is no 4th amendment issue. However, they want to force the defendant to divulge incriminating information to assist their criminal investigation. That definitely implicates 5th amendment concerns.
How about first to do both. You would have to have an invention before you can file. Otherwise, I'm patenting time travel.
Then who would win if one party proves first invention and the other proves filing first? There's no logical inconsistency in that. They both independently develop the same invention prior to either filing and the second party to invent is the first party to file.
This law is a good thing. It's just not the good thing that we wanted when we heard "patent reform."
I'm not aware of any legal theory that supports this position. Regardless of who has the contract with the ISP, the liability lies with the party that actually infringed on the copyright(s) in question. It is true that the suit would originally be filed against the account holder, since they have to start somewhere, but if they can't show the defendant was the person who actually infringed their copyright, they will not prevail. The MAFIAA have attempted to spread all sorts of FUD about account holders being responsible for the activities of all users, but it's a bunch of nonsense. They would have you believe that Starbucks is responsible for everything that happens on their open WIFI, too. How many suits have you heard of against Starbucks for this sort of thing? Zilch, right? They'll never file suit because it would only establish a solid precedent that account holders do have have liability for the actions of other users.
Keep in mind, though, the burden of proof is a preponderance of the evidence (>50%) and many judges/juries are not especially well technologically educated. Personally, I would unplug or cut his ethernet cord if he insisted on doing this crap without taking precautions, but if you're nicer than me at least make sure that your computer is completely separate from his. You may need to testify at some point that you never use his computer and he's not allowed to touch yours. I'd also at least password protect your computer (ideally encrypt that shit) so he doesn't go "borrowing" it. Your computer's hard drive should be pristine. If he does attract a lawsuit, you better believe it's going to be searched.
(b) Discovery Scope and Limits.
(1) Scope in General.
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
To reiterate: relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
In other words: if it probable that searching your mom's/roommate's/girlfriend's laptop might lead to evidence in their copyright lawsuit, a plaintiff can go ahead and do so. Please keep this in mind. I always thought it was obvious that every computer or storage device in a household would be subject to search during a copyright infringement lawsuit. If this is surprising to anyone, I guess it is good that we have a story about it. IAAL, and this is not a controversial position. I wish it were otherwise, but FYI, there it is.
Ditto here. I find it especially helpful with niche RPG products. I love the Pathfinder series of RPG books (based on 3.5 D&D), but not all of them are worth buying. They aren't popular enough to rely on Amazon reviews, and they don't even enable the "look inside" feature. After downloading basically their entire library, I've been steadily buying hardcopies of the best books. Without the ability to take my time and evaluate the products, I certainly wouldn't have bought any of them. This is incentivizing publishers: Good adventure Pazio, here's fifteen bucks. Bad collection of magic items thrown together without much thought: no money for you.
"BMV Communications Director Dennis Rosebrough said if a criminal went to get a driver's license under his name, the criminal's photograph would be compared to an old photograph of Rosebrough and the BMV could be alerted the next day that the two don't match."
Just so everyone is clear. BMV WILL ISSUE the driver's license. Then they will find out the NEXT DAY that the photos don't match. God knows what they will do then. If you think they will attempt to call you, get real. Most likely, they will suspend or invalidate the license number, and require you to come in and prove up your identity and pay for reinstatement.
Of course, they will just mail that notice to the last address on file. If you haven't kept BMV updated on your address(who does?) it will go to your old address. There is no requirement in Indiana that you *actually* be notified of suspension/revocation/invalidation. If they BMV mails it, then you are effectively notified.
So when you get pulled over and your car is towed and you are ticketed because the officer believes your license is suspended, think to yourself, "Thanks for protecting my identity, BMV."
And some jerk still gets a driver's license with your name on it! What is the point of this?
Although the obvious (and most fun) question would be "Why can't you testify to the [same general material] in the Netherlands and Canada?"
I guess that among the numerous great queries previously posted, I would be interested to know:
Which programs were used to obtain the files which have been allegedly shared (or made available for distribution) by the defendant (screenshots will help here - post them if you don't recognize them or if you believe they may be altered - we will help), and whether the manner of usage by the plaintiffs was in compliance with the license agreement of said software and state (and federal) law. I haven't read the response to the interrogatories provided by the RIAA for a month or more, but from what I do recall, it seemed that they avoided specific responses about what software was being used. If I recall correctly, they simply stated that they used the "same software as a typical user" and accessed files "as the typical user would."
I believe, from the links provided in the initial post, that this suit was filed in a state court in the state of new york. Although I am not licensed as an attorney in that state, based on my experience in other states, I would be surprised if NY had not outlawed something along the lines of "unauthorized access of a computer system." Typically, this would include falisifying your identity for the purpose of obtaining access to particular files (or access of the system in general). Of course, this would only be important if NY has a statute that would prohibit the introduction of evidence in a civil trial of evidence that was obtained in a fashion that is illegal (or, more broadly, in contravention of public policy). It has been my experience that most software (e.g. Kazaa lite++) both prohibits usage of the software for the intentional violation of the copyright law, and probibits the use of the software for the purpose of ascertaining the identity of other users. Read that license with a fine-tooth comb.
As a last resort, based on the responses to the above question, I would consider an in pari delitico argument. The RIAA violated copyright law (probably - or at least a license agreement) to obtain the evidence for trial, and they ought not benefit from such a tactic.