You might want to go sit in on a Constitutional Law class, where it will be explained, in minute detail, why you're wrong when you think you're right. The short answer is that the words of the Constitution don't always mean what they appear to mean. The long answer is that this sort of behavior by the school district has long been held to be unconstitutional, going back at least to Tinker v. Des Moines School District: http://caselaw.lp.findlaw.com/scripts/getcase.pl?c ourt=US&vol=393&invol=503
There's another reason besides copyright infringement that the powers that be aren't gonna like this much -- this looks a hell of a lot like an early backbone for truly independent television. This could allow distribution of student films, public-access tv, homemade movies and shows to a much wider audience than might be otherwise available. If some company starts marketing a plug-n-go set top box with this feature enabled and pointing to an RSS feed site that contains exclusively (or even primarily) legal video, there's might be a measurable number people changing channels away from bad reality TV.
Has anyone else noticed that some of the arguments advanced by SCO relating to the alleged iuclusion of proprietary code in the linux kernel are very similar to the WASTE situation? I mean, clearly they aren't directly analogous, and SCO are litigous bastards etc., but think about it: Justin Frankel, while working under a contract that makes all of his software belong to AOL/TW, releases a piece of software under the GPL without authorization. Some people argue that the initial release makes it GPL forever and ever amen, but as many smart comments have pointed out on this thread, that's just false. That's *sorta* similar to SCO's continued distribution of the linux kernel post-IBM lawsuit, isn't it?
Either way, seems to me that between the WASTE situation and the SCO lawsuit, that open-source insurance is a good idea.
There are a number of reasons. First, a class action is prosecuted by, and in the name of , an actual member of the class. "RIAA" is not a musical artist, it's a loose consortium of record label interests that happens to be "pursuing the interests" of certain artists. Perhaps a particular artist operating at the behest of the RIAA could attempt class certification, but the RIAA itself most certainly cannot
Furthermore, the class must be at least partially homogenous, and similarly situated. The "class" of "recording artists whose music has been downloaded on Kazaa" is not a real class -- it's too diffuse, and the damages are too differentiated from "class" member to member.
Finally, the mechanics of this imaginary lawsuit are simply too complex to handle for any one court. The "defendant" isn't a single defendant, the way it would be in most class actions -- it's another class, that's even less homogonous and unified than the class of plaintiffs! That simply won't fly in any court in this country--certain members of the "defendant class", for example, would have absolutely no liability to certain members of the "plaintiff class."
What the grandparent post describes isn't a class action -- it's a dystopian fiction.
This is a gross overstatement. Generally, lawsuits have to be prosecuted by a party with legal "standing," and must be prosecuted by the "real party in interest." Class actions are a limited exception to this rule, and one the RIAA cannot take advantage of.
It's true that the RIAA can claim to be acting as a representative of a party, but if it is not actually acting as that party's representative and this fact is brought to the court's attention, the suit will be dismissed.
Here's a tactic he left out
on
The Law and P2P
·
· Score: 4, Informative
Okay, we're getting offtopic, but the parent post is just silly. ATRA has nothing to do with this! This is a COPYRIGHT claim, not a TORT claim. ATRA is a business lobbying group, that generally supports limits on certain types of civil suits -- specifically, those suits that are harmful to business. I don't think it's a stretch to say that (to most businesses) that does not include copyright suits.
Don't believe me? Check out their own website! In fact, don't be surprised if American Greetings turns out to have contributed to ATRA!
The DoD doesn't want to pay for something that will subsequently be given away to anyone who wants it. What's the problem?
That in and of itself is the problem, and that's what makes this a 'freedom' issue. While admittedly the U.S. Goverment isn't (and shouldn't be) required to fund everything under the sun, part of the rationale given for cutting this funding seems to be that open source and free software aids and abets 'capable nation states' by its very existence, since those 'capable nation states' are 'capable' of using it for purposes the U.S. Government doesn't like.
The problem with this argument, as many people pointed out in the other discussions on this issue, is that it proves too much: the classic example is that a hammer can be used to build or to break, but nobody suggests that we should stop make hammers because they can be used to break things.
I understand your point. However, any acquittal in this case will be based on the facts of the case, rather than the law--the factfinder (I assume it's being tried to a judge rather than a jury, but I'm not certain) would likely find that Elcomsoft did not violate the DCMA, rather than finding that the DCMA was legally deficient. In that sense, an acquittal could make the arguments in support of the law stronger, rather than weaker!
I think you might be reading too much into the guy's comment. When looked at in the context of the article (particularly the part you just quoted regarding 'criminal prosecutions'), it seems that he's referring to the criminal provisions of the law only. Since this is the only criminal prosecution that has been brought under the DCMA, he might have a point. However, your view on the civil provisions of the law is clearly OTM.
No. Actually, quite a number of reasonable people are hoping for this result.
Remember that this is a criminal case. If Elcomsoft wins, the Justice Dept. most likely will not appeal. The prosecution's right to appeal in criminal cases is very limited, and I don't see how any of the pretrial rulings by the judge in this case are legally wacky in favor of Elcomsoft (if anything, they've been biased against Elcomsoft). Therefore, legal issues regarding the validity of the criminal provisions of the DCMA will only be heard by an appellate court if Elcomsoft loses the case. An appeal is crucial, since only if the case works its way up the appellate ladder will we ever get a ruling against the law.
Since Dimtry is no longer a party to the case, the only real penalty than can be levied is a fine anyway. Thus, this is a relatively harmless way for there to be a good result in the end.
The DCMA has criminal and civil provisions. THIS IS THE ONLY CRIMINAL DCMA CASE THAT HAS EVER BEEN PRESENTED, period. You're talking about the civil provisions of the DCMA (which are admittedly terrible, nasty , awful, misused, all of that stuff). The Justice Department simply doesn't go around sending out cease and desist letters.
From a tactical standpoint, I'm hoping that Elcomsoft gets convicted, since I'm betting that the criminal provisions of the law will be deemed overbroad and vague on appeal. Then, by implication, thoose arguments will become more available to defendants in civil DCMA cases.
Well, maybe they'll do what they did for Arpanet and the GPS. Oh, no wait -- those examples go against the slashbot libertarian party line, don't they? My apologies.
BZZZT. Right answer, wrong reason.
Apparently, all of those people who bitch about courts not knowing the Constitution can't be bothered to read it themselves, because if they did, they'd realize that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Seeing as how this is a civil suit, the Fifth Amendment has zero application here. However, the fact that they're being directed to engage in evidence gathering for the other side seems pretty far removed from a reasonable discovery ruling to me.
. . . I'm beginning to hate more these idiot posters who insist that the reason that CD sales are going down is because of the industry's focus on hip-hop, boy bands, and Britney Spears. These are the same people who get fanatical about capitalism and Ayn Rand in other contexts, yet they can't see that there is a huge market for teen pop music. You're not all of a sudden "deeper" than some Jive Records exec because you listen to Sting, morons. If you want to attack the RIAA, do it because they're being stupid about intellectual property, not because you don't like the music they produce--there's always indie and local music, you know.
Slashdot Mirror
This is an urban myth.
http://www.thirdamendment.com/nobility.html#anchor6
You might want to go sit in on a Constitutional Law class, where it will be explained, in minute detail, why you're wrong when you think you're right. The short answer is that the words of the Constitution don't always mean what they appear to mean. The long answer is that this sort of behavior by the school district has long been held to be unconstitutional, going back at least to Tinker v. Des Moines School District:c ourt=US&vol=393&invol=503
http://caselaw.lp.findlaw.com/scripts/getcase.pl?
I can't STAND ITunes. I refuse to use it.
http://parryaftab.blogspot.com/
Let 'er rip, kids!
There's another reason besides copyright infringement that the powers that be aren't gonna like this much -- this looks a hell of a lot like an early backbone for truly independent television. This could allow distribution of student films, public-access tv, homemade movies and shows to a much wider audience than might be otherwise available. If some company starts marketing a plug-n-go set top box with this feature enabled and pointing to an RSS feed site that contains exclusively (or even primarily) legal video, there's might be a measurable number people changing channels away from bad reality TV.
Has anyone else noticed that some of the arguments advanced by SCO relating to the alleged iuclusion of proprietary code in the linux kernel are very similar to the WASTE situation? I mean, clearly they aren't directly analogous, and SCO are litigous bastards etc., but think about it: Justin Frankel, while working under a contract that makes all of his software belong to AOL/TW, releases a piece of software under the GPL without authorization. Some people argue that the initial release makes it GPL forever and ever amen, but as many smart comments have pointed out on this thread, that's just false. That's *sorta* similar to SCO's continued distribution of the linux kernel post-IBM lawsuit, isn't it?
Either way, seems to me that between the WASTE situation and the SCO lawsuit, that open-source insurance is a good idea.
There are a number of reasons. First, a class action is prosecuted by, and in the name of , an actual member of the class. "RIAA" is not a musical artist, it's a loose consortium of record label interests that happens to be "pursuing the interests" of certain artists. Perhaps a particular artist operating at the behest of the RIAA could attempt class certification, but the RIAA itself most certainly cannot
Furthermore, the class must be at least partially homogenous, and similarly situated. The "class" of "recording artists whose music has been downloaded on Kazaa" is not a real class -- it's too diffuse, and the damages are too differentiated from "class" member to member.
Finally, the mechanics of this imaginary lawsuit are simply too complex to handle for any one court. The "defendant" isn't a single defendant, the way it would be in most class actions -- it's another class, that's even less homogonous and unified than the class of plaintiffs! That simply won't fly in any court in this country--certain members of the "defendant class", for example, would have absolutely no liability to certain members of the "plaintiff class."
What the grandparent post describes isn't a class action -- it's a dystopian fiction.
This is a gross overstatement. Generally, lawsuits have to be prosecuted by a party with legal "standing," and must be prosecuted by the "real party in interest." Class actions are a limited exception to this rule, and one the RIAA cannot take advantage of.
It's true that the RIAA can claim to be acting as a representative of a party, but if it is not actually acting as that party's representative and this fact is brought to the court's attention, the suit will be dismissed.
The RIAA might just let the cops do it for them.
Be afraid, be very afraid.
Okay, we're getting offtopic, but the parent post is just silly. ATRA has nothing to do with this! This is a COPYRIGHT claim, not a TORT claim. ATRA is a business lobbying group, that generally supports limits on certain types of civil suits -- specifically, those suits that are harmful to business. I don't think it's a stretch to say that (to most businesses) that does not include copyright suits.
Don't believe me? Check out their own website! In fact, don't be surprised if American Greetings turns out to have contributed to ATRA!
The DoD doesn't want to pay for something that will subsequently be given away to anyone who wants it. What's the problem?
That in and of itself is the problem, and that's what makes this a 'freedom' issue. While admittedly the U.S. Goverment isn't (and shouldn't be) required to fund everything under the sun, part of the rationale given for cutting this funding seems to be that open source and free software aids and abets 'capable nation states' by its very existence, since those 'capable nation states' are 'capable' of using it for purposes the U.S. Government doesn't like.
The problem with this argument, as many people pointed out in the other discussions on this issue, is that it proves too much: the classic example is that a hammer can be used to build or to break, but nobody suggests that we should stop make hammers because they can be used to break things.
"mellennium"?
Before you go pointing out someone else's typos, you should probably check if you've made any yourself!
I understand your point. However, any acquittal in this case will be based on the facts of the case, rather than the law--the factfinder (I assume it's being tried to a judge rather than a jury, but I'm not certain) would likely find that Elcomsoft did not violate the DCMA, rather than finding that the DCMA was legally deficient. In that sense, an acquittal could make the arguments in support of the law stronger, rather than weaker!
I think you might be reading too much into the guy's comment. When looked at in the context of the article (particularly the part you just quoted regarding 'criminal prosecutions'), it seems that he's referring to the criminal provisions of the law only. Since this is the only criminal prosecution that has been brought under the DCMA, he might have a point. However, your view on the civil provisions of the law is clearly OTM.
No. Actually, quite a number of reasonable people are hoping for this result.
Remember that this is a criminal case. If Elcomsoft wins, the Justice Dept. most likely will not appeal. The prosecution's right to appeal in criminal cases is very limited, and I don't see how any of the pretrial rulings by the judge in this case are legally wacky in favor of Elcomsoft (if anything, they've been biased against Elcomsoft). Therefore, legal issues regarding the validity of the criminal provisions of the DCMA will only be heard by an appellate court if Elcomsoft loses the case. An appeal is crucial, since only if the case works its way up the appellate ladder will we ever get a ruling against the law.
Since Dimtry is no longer a party to the case, the only real penalty than can be levied is a fine anyway. Thus, this is a relatively harmless way for there to be a good result in the end.
Dimitri is no longer a defendant in the case. The case is proceeding against Elcomsoft as the corporate defendant.
No, not 'nuff said. You've missed the point.
The DCMA has criminal and civil provisions. THIS IS THE ONLY CRIMINAL DCMA CASE THAT HAS EVER BEEN PRESENTED, period. You're talking about the civil provisions of the DCMA (which are admittedly terrible, nasty , awful, misused, all of that stuff). The Justice Department simply doesn't go around sending out cease and desist letters.
From a tactical standpoint, I'm hoping that Elcomsoft gets convicted, since I'm betting that the criminal provisions of the law will be deemed overbroad and vague on appeal. Then, by implication, thoose arguments will become more available to defendants in civil DCMA cases.
MOD PARENT UP
http://laws.lp.findlaw.com/fed/011108.html
Well, maybe they'll do what they did for Arpanet and the GPS. Oh, no wait -- those examples go against the slashbot libertarian party line, don't they? My apologies.
What am I missing?
A brain. Go back to doing BOTW!
BZZZT. Right answer, wrong reason. Apparently, all of those people who bitch about courts not knowing the Constitution can't be bothered to read it themselves, because if they did, they'd realize that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Seeing as how this is a civil suit, the Fifth Amendment has zero application here. However, the fact that they're being directed to engage in evidence gathering for the other side seems pretty far removed from a reasonable discovery ruling to me.
. . . I'm beginning to hate more these idiot posters who insist that the reason that CD sales are going down is because of the industry's focus on hip-hop, boy bands, and Britney Spears. These are the same people who get fanatical about capitalism and Ayn Rand in other contexts, yet they can't see that there is a huge market for teen pop music. You're not all of a sudden "deeper" than some Jive Records exec because you listen to Sting, morons. If you want to attack the RIAA, do it because they're being stupid about intellectual property, not because you don't like the music they produce--there's always indie and local music, you know.
This post is offensive on a multitude of levels, and everybody who modded it up really needs to do some self-examination.
Toups - stop trying to be P.J. O'Rourke and go back to doing Babes of the Web. At least you were useful back in the day.