We can't. He would have to be impeached by Congress. There are federal judges who make wacko decisions all the time (like the female judge in Texas who let a man who molested and raped a 12 year old boy off with probation).
People in Texas are outraged and are pushing for her removal, BTW, and it looks like it MAY happen.
The system allows for wacko judges by having an appeals system.
Usually the only consequence is that they do not get to move up. District "judges" like Kaplan are the lowest rung. To get up to the court of appeals, you either have to show merit, or (more common) be a reliable political hack.
Sadly, Kaplan probably stands a chance to move up eventually. Why? Because the public doesn't know enough to be outraged (like they got over that Texas case).
Chances are, he will end up leaving the bench and cash in his ticket for a fat legal consulting job for the MPAA or a MPAA plantiff. Or else he may end up as an attorney general for a future Gore or Hillary Clinton administration (if either happens, the Baldwins can stay, I'm leaving:)
Actually, the court is one way, perhaps the ONLY way, to get the horrid parts of the DMCA declared illegal.
Given that the DMCA passed unanimously by BOTH houses of Congress, I think our chances of getting them to repeal it are hovering just barely above zero...
However, get a Federal judge to judge the DeCSS case on the Constitutionality of the law (DMCA) that enabled the MPAA claim to begin with, and it's almost certain parts of it will go.
The dishonorable, worthless "judge" Kaplan completely abandoned his duty to the Constitution (he did swear an oath to uphold it) in the name of previous and likely future MPAA money.
This case will ultimately end up at the Supreme Court. What we need is to turn things around and put the DMCA on trial, and this amicus brief REALLY does a good job of raising this issue. We NEED a court to rule on this, in that way. Get a strong ruling, then it becomes harder up the line to get it overturned. I doubt the present Supreme Court will look kindly on Kaplan's ruling if handed to them to evaluate.
The court of appeals is the beginning of the major league. Kaplan was only a lowly district judge, a relative peon compared to who has this case now. District judges get overturned all the time.
"Hey, the History Channel is pretty good. So is the Discovery Channel. Fuck, if I could pay $8 a month to get just those"
Ever wonder why you can't do that? Because they don't have to. They want your $40 for "basic" service and it's a "take it or leave it" deal. Why do you think that the lower and middle satellite plans leave out "just one or two" channels that you would want, which ends up costing you $10 more a month despite the fact you don't want ANY of those other 25 channels extra.
If cable and satellite were sold "a la carte" they'd not generate revenue from most of the crap channels.
"Don't watch TV. I don't. Once you break the addiction, you'll be amazed how much more time you have"
I haven't watched TV regularly for some time. When I do, it's only for sports or news. Most of my entertainment comes from reading and the Internet, though I do buy a lot of movies. Which I will definately STOP doing if prices rise or else they start annoying me with commercials, etc.
In fact, the main reason why I do NOT watch broadcast or cable TV channels is that it's mostly commercials and marketing with a little bit of idiotic programming jammed in.
Same reason why I don't listen much anymore to popular music, it's become lowest common denominator stuff that is marketer driven.
Clearly, I think we are heading towards the point where the dividing line between the intelligent and the ignorant can be discovered by finding out how much mass media is consumed.
"Maybe if they started charging reasonable rates for their product, people wouldn't feel the need to copy it without paying for it."
I think this is the rub. By locking down "protections" and control over digital technology that they didn't legally and technologically have with analog, they are setting the stage where they simple CAN charge out the wazoo.
And rates have been climbing towards unreasonable for quite some time. Basic cable rates of $40/month?!! DVD movies costing $25-30??!
While I do NOT advocate piracy, in some ways, the threat of piracy is a check on the power of cartel monopolies like the MPAA/RIAA. By knowing that their media CAN be pirated and that it WILL be widespread if given enough reason to, the MPAA/RIAA knows there is a limit to how much they can charge.
What they want is a world where there IS no threat of piracy at all. However, people like Valenti are babes in the woods when it comes to truly understanding how technology works. They simply do not understand that the more onerous, annoying and intrusive their "copy protection" becomes, the greater the chance that it WILL be broken. Also, the higher the price becomes, the greater likelyhood that a larger number of people WILL pirate.
Since consumer video and recording tecnology HAS to have a certain shelf-life (most peope will simply NOT put up with replacing their players, TV's etc as often as we upgrade computers), advancing technology will pretty much render ANY copy protection obsolete and crackable.
However, the existance of the DMCA does suggest that they have at least thought of this in some ways, by getting these circumvention devices declared illegal.
But, it's only a matter or time until at least some of the teeth are jarred from the DMCA. By striking first, the MPAA was able to handpick their man ("judge" Kaplan) and get the ruling they wanted. In the near future, DMCA cases are going to be heard in a lot of locales by a lot of different judges. I have to be optimistic and hope that Kaplan only represents an extreme minority. If he does represent the typical judge, then you might as well order your jackboots, and practice singing your Corporate Hymn.
Actually, many of the "scientists" who constantly harp on global warming were predicting an ice age as recently as the 1970's.
There as yet is NO scientific proof. There has not been accurate climatilogical data kept for the entire Earth for long enough to make ANY projections.
And as others have pointed out, this is one of the coldest winters on record. Here in SE North Carolina, we just had the coldest December on record, and we're working on the coldest January on record.
To find the truth to anyone's "facts" on something such as this, you have to follow the money. Most of the prominent global warming theologians (yes, radical enviornmentalism IS a religion) are from the extreme socialist-left wing camp. If these people were to have their way, the entire civilized world (with the exception of the liberal "high priests" who still fly in polluting planes and ride around in gas-guzzling air conditioned limos) be thrown back into abject miserable poverty.
It's seldom pointed out by these theologians that Mt. Pinatubo, in the Phillipines, which erupted in 1994 (I think it was) spewed more carbon dioxide and carbon monoxide (the so called causes of global warming) than all man made pollution of the last 100 years!
However, the global warming theologians ARE correct in a way, though totally wrong about the cause. All life on Earth will be destroyed by global warming. In about 100-500 million years as the sun continues to grow gradually larger, brighter and hotter as it moves towards the Red Giant phase in about 4 billion years.
The fact is, on an astronomical time table, Earth is already practically AT the end of it's ability to sustain life.
"You understand the public had nothing to with Betamax? It's a Supreme Court decision, not a popular vote"
If it hadn't been for the public outcry, there never would have been a case to be made.
"Since 1986, Reagan and Bush have added Clarence Thomas, Sandra Day O'Connor, et al to the Court. These people don't have a history of favoring free-speech rights."
As for conservatives on the court, they tend to be strict constructionists, and reluctant to let things LIKE the DMCA trump the Constitution. Liberal judges tend to find things in the Constitution that aren't there (ie, make something up to suit one's agenda rather than following the law), which might allow something like the DMCA... particularly as the Left has the most ties to Hollywood and the MPAA.
Case in point: Judge Kaplan IS a Liberal judge, and a Clinton Appointee. As a Liberal judge, he "found" an exception to the 1st Amendment that allowed him to make hyperlinking illegal.
Also, you forget Reno vs ACLU, aka, the CDA case. It was Scalia, the MOST conservative judges on the court who wrote the majority opinion striking down the CDA.. And Thomas also voted to strike it down.
I feel far safer with conservative strict Constitutionalists on the court than with any other type.
You do have a point, Reagan and Bush both appointed judges like Souter and O'Conner, both of which have proven themselves to be unfriendly to the Constitution at times.
"Hey, if they want to tax blank media to offset piracy, then I'm going to pirate to offset the blank media tax. Fair is fair. "
In a moral sense, a tax on blank media pretty much would piracy. After all, you are PAYING the RIAA/MPAA through the tax for their audio/video/software whether you bought it or not.
IMO, a tax on blank media is one of those "thin edge of the wedge" issues. Clearly the MPAA/RIAA want to get a cut, but it will obviously be abused to the point to make blank media artificially expensive. Blank CD-R discs used to cost more than $5 a pop, now they can be had for less than $.50.
Their justification for increasing the "RIAA/MPAA tax" every year? Why that skyrocketing $$$ they claim every year (though never in their SEC filings, which is a felony) that is "lost" to piracy. If you think hundres of billion$ are being "lost" to piracy now, watch it soar into the trillion$ if that "tax" got passed.
I also wonder about the Constitutionality of such a tax... Is it legal to tax citizens on behalf of a corporation?
If upheld, the DeCSS case could "Dred Scott" away the 1st Amendment. There will then, for all practical purposes, cease to be any such thing as "free speech" that is not approved by the MPAA/RIAA, which are huge corporate cartels.
This would have a chilling effect on the Internet, technology and education. Read what Valenti (chief MPAA goon) was saying about academia having NO fair use rights in the DMCA world...
Kaplan ruled the DMCA not only Constitutional, but ADDED to it with his hyperlink ruling...
Kaplan had a RESPONSIBILITY, based on his OATH he took when he was confirmed as a federal judge (Clinton appointee), to "preserve, protect, and defend the Constitution".
How could ruling so blatantly and partisanly in favor of the MPAA, with the attitude "Constitution be dammed, I'm looking out for ME" be upholding that oath? Kaplan could, I suppose have ruled that the DMCA WAS constitutional, but he totaly failed to give ANY JUSTIFICATION WHATSOEVER in his ruling...
DeCSS is completely unnecessary to copy a DVD. That can be done with any DVD recorder by doing a bit-for-bit copy.
DeCSS allows decoding of the DVD for playback. That is really it's only real purpose.
In fact, in terms of piracy, the MPAA is far more threatened by MPEG-4.... There are now Mpeg-4 rippers out there that will allow you to copy and compress a DVD onto an ordinary 650MB CD-R disc with very little loss of quality... tomshardware.com has an article on this.
The MPAA is after DeCSS for one reason: they want TOTAL control of the PLAYER... They want to dictate when, how, and by what a DVD is played on.
There are so many laws in the USA (over 60,000 NEW state, local and Federal laws passed any given year) it may, in fact be IMPOSSIBLE for any EULA to be 100% legal in every single state, or locale.
The very complexity of them are their weakness. Simple EULA's that stuck to Constitutional law would be enforceable anywhere. However, the whole point of a EULA is to deprive the end user of their rights...
I think shrinkwrap EULA's have been (in principle) upheld by some Federal Court, I don't think the Supreme Court has ruled on it.
However, the terms of ANY specific EULA (they are almost all different) in a technical sense, are NOT gospel until ruled on by a court, and then not until the Supreme Court.
So it can be said that ANY EULA is as binding as either party is willing to either enforce it or challenge it. IMO, most EULA's violate at least SOME law somewhere, including the Constitution, so most of them are probably, at least in part, illegal.
"What puzzles me is that I believe that Antitrust was made by a member of the MPAA (correct me if wrong)."
Hollywood itself (the writers, actors, production talent, etc) is not at all represented by the MPAA. The MPAA represents the studio/corpers.
Though as a conservative I frequently disagree with Hollywood, there is still an element there that does stand for free expression.
I haven't seen this movie yet, so I can't comment intelligently on it. However, many (in fact, EVERY) Hollywood movie about hackers since War Games has had many extreme inaccuracies.
"I thought only the Supreme Court was supposed to handle that?"
Nope. That is the primary Constitutional role for the Federal Judiciary. ALL judges have that power, which, of course, can be overridden by higher courts up to the Supreme Court.
By failing to take the Constitution into account at all in the DeCSS case, so-called "judge" Kaplan violated the oath he took when he became a judge.
"These academics need access to old data, really any old data, the more the better - even the most boring or transient stuff could be extremely useful to somebody sometime"
The MPAA and RIAA got snuck thru Congress (a la the DMCA) a law that ends the 20-30 year limit (I am not sure what it was) on a record company owning distribution rights to a song...
Also, as I recall, there was actual testimony in the DeCSS case where some MPAA drone admitted that because of the DMCA, using video clips of a movie on VHS in an academic paper would be legal, while video clips taken from a DVD would not..
The DMCA, as it stands now interpreted by "judge" Kaplan would seem to prevent ANY academic use of digital media....
Actually, Fair Use derives from the Constitution, not from statutory law.
I don't think it's possible to sign away or agree to anything that conflicts with the Constitution. If it were that easy, would-be tyrants would long ago have done it.
The DVD "EULA" shrink-wrap license terms that conflict with fair use are legal only in that they (may) be written to use the DMCA. The DMCA is statutory law, and is trumped by Constitutional law..
There is a LONG line of supreme court rulings on fair use that would seem to make using the DMCA in the way the MPAA did (and Kaplan rubber stamped) in the DeCSS case unconstitutional.
Correct. Furthermore, this time, the EFF has the initiative... This case is proceeding to court AFTER they have prepared it. The Kaplan screwjob was more of a mugging than a trial. The defendants were obstructed and confounded constantly by him.
Assuming that the appelate judge isn't another Kaplan, this hearing will be a LOT different. I've read most of the EFF legal brief now, and I have to say, it makes things very clear, simple and SCARY... Kaplan's ruling is potentially the Dred Scott Decision of the 1st Amendment if it stands (ruled that blacks were not entitled to ANY Constitutional due process).
And for those who got their History from a government school, the Dred Scott decision led to the Civil War... Kaplan's ruling could necessitate more bloodshed to retake this country from a tyrannical corporate owned goverment...
Money ALWAYS buys influence and loyalty. This includes employer-employee relationships. Kaplan was once an indirect (through his lawfirm) an employee of the MPAA.
What is insane is a system of government made up of politicians who have to shake down donors to get re-elected. This is one drawback of an elective Republic.
I belive that there needs to be mandatory FULL DISCLOSURE of all contributions, relationships, et all for ALL elected politicians and judges. This should have to be disclosed publically, and the officer/etc/judge should then be required to recuse themselves in any case/vote etc that involves a contributor...
Furthermore, only INDIVIDUALS should be allowed to contribute anything to campaigns. Corporations, organizations, unions, etc should be forbidden to influence government with contributions.
Will this ever happen? Of course not. Something like John McCain's hairbrained, unbalanced, and farcical "campaign finance reform" that will do nothing to stop corporate or organization/union contributions, nor will it require FULL disclosure is far more likely.
"Sad, really. I thought our judiciary was beyond blatant corporate/monetary influence."
No, that is what lobbying government is all about. Using the power of the government and other people's money to get your way.
Which is why I'm morally opposed to government having any more power than is absolutely needed to prevent mass anarchy. In fact, government's ONLY legitimate role in commerce is preventing corporate cartels like the MPAA from walking over the Constitution...
At least this time, as the party bringing the case to court, 2600 will be able to have a lot more control over the scheduling.
One act that really exposed Kaplan's bias was his constant caving in to the MPAA in moving up schedules. This was done deliberately to deny Garbus the time to make his case.
Remember the first injunction hearing? Everyone got less than a WEEK's notice... Kaplan allowed himself to be used to completely blindside the defendants.
Remember, time and preparation are good for our side and bad for the MPAA. After all, they really can't come up with any new arguments, and thus benefit from rushing things thru.
"problem is most people today are completly unaware of the rights they are selling off when they get into new technology"
I disagree. The masses CAN be powerful in stopping such grabs of liberty when they want to. In particular, the Betamax case (1984 was it?) that ruled that it was legal to tape shows and movies off TV... Also, the public resoundingly rejected Divx.
The problem is, the case has to be made non-technical and explained... The MPAA/RIAA right now is trying to illegally "circumvent" fair use and the Betamax case law by arguing that digital recording/playback is somehow LEGALLY different from analog..
It's an argument that doesn't hold much legal weight, but the situation is a LOT different than it was back in the 80's...
For one, the media is virtually controlled today by the MPAA/RIAA members. So just WHO is going to report honestly on this case? Coverage of the first DeCSS trial was treated as the stereotypical "forces of good" vs the "evil hackers".
Secondly, the MPAA/RIAA's political influence is astounding. They got the DMCA, arguably the WORST law since "Jim Crowe" (forced segregation), passed UNANIMOUSLY by both parties...
In this case, the only possible relief is the courts. So-called "judge" Kaplan was handpicked for his previous (and likely lucrative future) ties to the MPAA. There are likely MANY more judges up the chain with similar ties, as the MPAA/RIAA have had a nasty habit of suing people lately and have employed many law firms (which produce federal judges).
I was getting a bit worried that this wasn't going to happen, and that a bought and paid for corporate hack, the dishonorable "judge" Kaplan was going to be allowed to have the final word on this...
Kaplan failed to uphold his responsibility in this case in several ways... Among them:
1. He failed to apply the required Constitutionality test to the DMCA. In so doing, he not only interpreted the DMCA in it's most narrow way possible (ignoring the clause that allows circumvention devices for uses OTHER than piracy, such as creation of a Linux DVD player), but he EXTENDED it by adding to it making hyperlinks to DeCSS illegal...
2. He failed to disclose his previous DIRECT ties to the MPAA, which was, if memory serves, being part of a law firm that had once REPRESENTED them. He then refused to recuse himself when it was requested of the defendant. He EXCORIATED Martin Garbus, the lead attorney for 2600, for a much lesser (and trivial) conflict of interest (Garbus once represented a media company later bought by Time-Warner).
Point #1 could be excused as incompetence, though, IMO, that is no excuse at ALL for a federal judge.
Point #2 leads me to believe that the actions in point #1 were because Kaplan is extremely corrupt. He worked for a MPAA lawfirm BEFORE he was a judge, and, likely, he will work for one AFTER. He stood to gain a LOT of money for ruling in the way that he did, for the MPAA. That is impeachable. Judges in particular should be held to the highest standards of character and conduct in a case. For the very reason that Federal judges in particular, weild a TON of power.
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"In short, how do we get him fired?"
:)
We can't. He would have to be impeached by Congress. There are federal judges who make wacko decisions all the time (like the female judge in Texas who let a man who molested and raped a 12 year old boy off with probation).
People in Texas are outraged and are pushing for her removal, BTW, and it looks like it MAY happen.
The system allows for wacko judges by having an appeals system.
Usually the only consequence is that they do not get to move up. District "judges" like Kaplan are the lowest rung. To get up to the court of appeals, you either have to show merit, or (more common) be a reliable political hack.
Sadly, Kaplan probably stands a chance to move up eventually. Why? Because the public doesn't know enough to be outraged (like they got over that Texas case).
Chances are, he will end up leaving the bench and cash in his ticket for a fat legal consulting job for the MPAA or a MPAA plantiff. Or else he may end up as an attorney general for a future Gore or Hillary Clinton administration (if either happens, the Baldwins can stay, I'm leaving
Actually, the court is one way, perhaps the ONLY way, to get the horrid parts of the DMCA declared illegal.
Given that the DMCA passed unanimously by BOTH houses of Congress, I think our chances of getting them to repeal it are hovering just barely above zero...
However, get a Federal judge to judge the DeCSS case on the Constitutionality of the law (DMCA) that enabled the MPAA claim to begin with, and it's almost certain parts of it will go.
The dishonorable, worthless "judge" Kaplan completely abandoned his duty to the Constitution (he did swear an oath to uphold it) in the name of previous and likely future MPAA money.
This case will ultimately end up at the Supreme Court. What we need is to turn things around and put the DMCA on trial, and this amicus brief REALLY does a good job of raising this issue. We NEED a court to rule on this, in that way. Get a strong ruling, then it becomes harder up the line to get it overturned. I doubt the present Supreme Court will look kindly on Kaplan's ruling if handed to them to evaluate.
The court of appeals is the beginning of the major league. Kaplan was only a lowly district judge, a relative peon compared to who has this case now. District judges get overturned all the time.
"Hey, the History Channel is pretty good. So is the Discovery Channel. Fuck, if I could pay $8 a month to get just those"
Ever wonder why you can't do that? Because they don't have to. They want your $40 for "basic" service and it's a "take it or leave it" deal. Why do you think that the lower and middle satellite plans leave out "just one or two" channels that you would want, which ends up costing you $10 more a month despite the fact you don't want ANY of those other 25 channels extra.
If cable and satellite were sold "a la carte" they'd not generate revenue from most of the crap channels.
"Don't watch TV. I don't. Once you break the addiction, you'll be amazed how much more time you have"
I haven't watched TV regularly for some time. When I do, it's only for sports or news. Most of my entertainment comes from reading and the Internet, though I do buy a lot of movies. Which I will definately STOP doing if prices rise or else they start annoying me with commercials, etc.
In fact, the main reason why I do NOT watch broadcast or cable TV channels is that it's mostly commercials and marketing with a little bit of idiotic programming jammed in.
Same reason why I don't listen much anymore to popular music, it's become lowest common denominator stuff that is marketer driven.
Clearly, I think we are heading towards the point where the dividing line between the intelligent and the ignorant can be discovered by finding out how much mass media is consumed.
"Maybe if they started charging reasonable rates for their product, people wouldn't feel the need to copy it without paying for it."
I think this is the rub. By locking down "protections" and control over digital technology that they didn't legally and technologically have with analog, they are setting the stage where they simple CAN charge out the wazoo.
And rates have been climbing towards unreasonable for quite some time. Basic cable rates of $40/month?!! DVD movies costing $25-30??!
While I do NOT advocate piracy, in some ways, the threat of piracy is a check on the power of cartel monopolies like the MPAA/RIAA. By knowing that their media CAN be pirated and that it WILL be widespread if given enough reason to, the MPAA/RIAA knows there is a limit to how much they can charge.
What they want is a world where there IS no threat of piracy at all. However, people like Valenti are babes in the woods when it comes to truly understanding how technology works. They simply do not understand that the more onerous, annoying and intrusive their "copy protection" becomes, the greater the chance that it WILL be broken. Also, the higher the price becomes, the greater likelyhood that a larger number of people WILL pirate.
Since consumer video and recording tecnology HAS to have a certain shelf-life (most peope will simply NOT put up with replacing their players, TV's etc as often as we upgrade computers), advancing technology will pretty much render ANY copy protection obsolete and crackable.
However, the existance of the DMCA does suggest that they have at least thought of this in some ways, by getting these circumvention devices declared illegal.
But, it's only a matter or time until at least some of the teeth are jarred from the DMCA. By striking first, the MPAA was able to handpick their man ("judge" Kaplan) and get the ruling they wanted. In the near future, DMCA cases are going to be heard in a lot of locales by a lot of different judges. I have to be optimistic and hope that Kaplan only represents an extreme minority. If he does represent the typical judge, then you might as well order your jackboots, and practice singing your Corporate Hymn.
Has it ever occured to any of these global warming theologians that the reason why it is logical for temps to rise and ice to melt is simple:
We are STILL coming out of the last ice age! Which ended less than 10,000 years ago. Mere seconds on the geologic time scale.
There is plenty of archeological evidence that temps used to be warmer than they are now in many of the upper lattitudes.
Actually, many of the "scientists" who constantly harp on global warming were predicting an ice age as recently as the 1970's.
There as yet is NO scientific proof. There has not been accurate climatilogical data kept for the entire Earth for long enough to make ANY projections.
And as others have pointed out, this is one of the coldest winters on record. Here in SE North Carolina, we just had the coldest December on record, and we're working on the coldest January on record.
To find the truth to anyone's "facts" on something such as this, you have to follow the money. Most of the prominent global warming theologians (yes, radical enviornmentalism IS a religion) are from the extreme socialist-left wing camp. If these people were to have their way, the entire civilized world (with the exception of the liberal "high priests" who still fly in polluting planes and ride around in gas-guzzling air conditioned limos) be thrown back into abject miserable poverty.
It's seldom pointed out by these theologians that Mt. Pinatubo, in the Phillipines, which erupted in 1994 (I think it was) spewed more carbon dioxide and carbon monoxide (the so called causes of global warming) than all man made pollution of the last 100 years!
However, the global warming theologians ARE correct in a way, though totally wrong about the cause. All life on Earth will be destroyed by global warming. In about 100-500 million years as the sun continues to grow gradually larger, brighter and hotter as it moves towards the Red Giant phase in about 4 billion years.
The fact is, on an astronomical time table, Earth is already practically AT the end of it's ability to sustain life.
There are limits to a NDA. For example, a NDA becomes void if the company breaks the law. You are not bound by it in that case.
Also, NDA's etc and EULA's are cases of tort or CIVIL law. You cannot be arrested or jailed for violating them.
The DMCA has the effect of taking civil EULA's and raising their power to the level of CRIMINAL law, which is definately on the shady side of legal.
"You understand the public had nothing to with Betamax? It's a Supreme Court decision, not a popular vote"
If it hadn't been for the public outcry, there never would have been a case to be made.
"Since 1986, Reagan and Bush have added Clarence Thomas, Sandra Day O'Connor, et al to the Court. These people don't have a history of favoring free-speech rights."
As for conservatives on the court, they tend to be strict constructionists, and reluctant to let things LIKE the DMCA trump the Constitution. Liberal judges tend to find things in the Constitution that aren't there (ie, make something up to suit one's agenda rather than following the law), which might allow something like the DMCA... particularly as the Left has the most ties to Hollywood and the MPAA.
Case in point: Judge Kaplan IS a Liberal judge, and a Clinton Appointee. As a Liberal judge, he "found" an exception to the 1st Amendment that allowed him to make hyperlinking illegal.
Also, you forget Reno vs ACLU, aka, the CDA case. It was Scalia, the MOST conservative judges on the court who wrote the majority opinion striking down the CDA.. And Thomas also voted to strike it down.
I feel far safer with conservative strict Constitutionalists on the court than with any other type.
You do have a point, Reagan and Bush both appointed judges like Souter and O'Conner, both of which have proven themselves to be unfriendly to the Constitution at times.
"Hey, if they want to tax blank media to offset piracy, then I'm going to pirate to offset the blank media tax. Fair is fair. "
In a moral sense, a tax on blank media pretty much would piracy. After all, you are PAYING the RIAA/MPAA through the tax for their audio/video/software whether you bought it or not.
IMO, a tax on blank media is one of those "thin edge of the wedge" issues. Clearly the MPAA/RIAA want to get a cut, but it will obviously be abused to the point to make blank media artificially expensive. Blank CD-R discs used to cost more than $5 a pop, now they can be had for less than $.50.
Their justification for increasing the "RIAA/MPAA tax" every year? Why that skyrocketing $$$ they claim every year (though never in their SEC filings, which is a felony) that is "lost" to piracy. If you think hundres of billion$ are being "lost" to piracy now, watch it soar into the trillion$ if that "tax" got passed.
I also wonder about the Constitutionality of such a tax... Is it legal to tax citizens on behalf of a corporation?
If upheld, the DeCSS case could "Dred Scott" away the 1st Amendment. There will then, for all practical purposes, cease to be any such thing as "free speech" that is not approved by the MPAA/RIAA, which are huge corporate cartels.
This would have a chilling effect on the Internet, technology and education. Read what Valenti (chief MPAA goon) was saying about academia having NO fair use rights in the DMCA world...
DUH!
Kaplan ruled the DMCA not only Constitutional, but ADDED to it with his hyperlink ruling...
Kaplan had a RESPONSIBILITY, based on his OATH he took when he was confirmed as a federal judge (Clinton appointee), to "preserve, protect, and defend the Constitution".
How could ruling so blatantly and partisanly in favor of the MPAA, with the attitude "Constitution be dammed, I'm looking out for ME" be upholding that oath? Kaplan could, I suppose have ruled that the DMCA WAS constitutional, but he totaly failed to give ANY JUSTIFICATION WHATSOEVER in his ruling...
DeCSS is completely unnecessary to copy a DVD. That can be done with any DVD recorder by doing a bit-for-bit copy.
DeCSS allows decoding of the DVD for playback. That is really it's only real purpose.
In fact, in terms of piracy, the MPAA is far more threatened by MPEG-4.... There are now Mpeg-4 rippers out there that will allow you to copy and compress a DVD onto an ordinary 650MB CD-R disc with very little loss of quality... tomshardware.com has an article on this.
The MPAA is after DeCSS for one reason: they want TOTAL control of the PLAYER... They want to dictate when, how, and by what a DVD is played on.
An addendum...
There are so many laws in the USA (over 60,000 NEW state, local and Federal laws passed any given year) it may, in fact be IMPOSSIBLE for any EULA to be 100% legal in every single state, or locale.
The very complexity of them are their weakness. Simple EULA's that stuck to Constitutional law would be enforceable anywhere. However, the whole point of a EULA is to deprive the end user of their rights...
I think shrinkwrap EULA's have been (in principle) upheld by some Federal Court, I don't think the Supreme Court has ruled on it.
However, the terms of ANY specific EULA (they are almost all different) in a technical sense, are NOT gospel until ruled on by a court, and then not until the Supreme Court.
So it can be said that ANY EULA is as binding as either party is willing to either enforce it or challenge it. IMO, most EULA's violate at least SOME law somewhere, including the Constitution, so most of them are probably, at least in part, illegal.
"What puzzles me is that I believe that Antitrust was made by a member of the MPAA (correct me if wrong)."
Hollywood itself (the writers, actors, production talent, etc) is not at all represented by the MPAA. The MPAA represents the studio/corpers.
Though as a conservative I frequently disagree with Hollywood, there is still an element there that does stand for free expression.
I haven't seen this movie yet, so I can't comment intelligently on it. However, many (in fact, EVERY) Hollywood movie about hackers since War Games has had many extreme inaccuracies.
"I thought only the Supreme Court was supposed to handle that?"
Nope. That is the primary Constitutional role for the Federal Judiciary. ALL judges have that power, which, of course, can be overridden by higher courts up to the Supreme Court.
By failing to take the Constitution into account at all in the DeCSS case, so-called "judge" Kaplan violated the oath he took when he became a judge.
"These academics need access to old data, really any old data, the more the better - even the most boring or transient stuff could be extremely useful to somebody sometime"
The MPAA and RIAA got snuck thru Congress (a la the DMCA) a law that ends the 20-30 year limit (I am not sure what it was) on a record company owning distribution rights to a song...
Also, as I recall, there was actual testimony in the DeCSS case where some MPAA drone admitted that because of the DMCA, using video clips of a movie on VHS in an academic paper would be legal, while video clips taken from a DVD would not..
The DMCA, as it stands now interpreted by "judge" Kaplan would seem to prevent ANY academic use of digital media....
Actually, Fair Use derives from the Constitution, not from statutory law.
I don't think it's possible to sign away or agree to anything that conflicts with the Constitution. If it were that easy, would-be tyrants would long ago have done it.
The DVD "EULA" shrink-wrap license terms that conflict with fair use are legal only in that they (may) be written to use the DMCA. The DMCA is statutory law, and is trumped by Constitutional law..
There is a LONG line of supreme court rulings on fair use that would seem to make using the DMCA in the way the MPAA did (and Kaplan rubber stamped) in the DeCSS case unconstitutional.
Correct. Furthermore, this time, the EFF has the initiative... This case is proceeding to court AFTER they have prepared it. The Kaplan screwjob was more of a mugging than a trial. The defendants were obstructed and confounded constantly by him.
Assuming that the appelate judge isn't another Kaplan, this hearing will be a LOT different. I've read most of the EFF legal brief now, and I have to say, it makes things very clear, simple and SCARY... Kaplan's ruling is potentially the Dred Scott Decision of the 1st Amendment if it stands (ruled that blacks were not entitled to ANY Constitutional due process).
And for those who got their History from a government school, the Dred Scott decision led to the Civil War... Kaplan's ruling could necessitate more bloodshed to retake this country from a tyrannical corporate owned goverment...
Money ALWAYS buys influence and loyalty. This includes employer-employee relationships. Kaplan was once an indirect (through his lawfirm) an employee of the MPAA.
What is insane is a system of government made up of politicians who have to shake down donors to get re-elected. This is one drawback of an elective Republic.
I belive that there needs to be mandatory FULL DISCLOSURE of all contributions, relationships, et all for ALL elected politicians and judges. This should have to be disclosed publically, and the officer/etc/judge should then be required to recuse themselves in any case/vote etc that involves a contributor...
Furthermore, only INDIVIDUALS should be allowed to contribute anything to campaigns. Corporations, organizations, unions, etc should be forbidden to influence government with contributions.
Will this ever happen? Of course not. Something like John McCain's hairbrained, unbalanced, and farcical "campaign finance reform" that will do nothing to stop corporate or organization/union contributions, nor will it require FULL disclosure is far more likely.
"Sad, really. I thought our judiciary was beyond blatant corporate/monetary influence."
No, that is what lobbying government is all about. Using the power of the government and other people's money to get your way.
Which is why I'm morally opposed to government having any more power than is absolutely needed to prevent mass anarchy. In fact, government's ONLY legitimate role in commerce is preventing corporate cartels like the MPAA from walking over the Constitution...
At least this time, as the party bringing the case to court, 2600 will be able to have a lot more control over the scheduling.
One act that really exposed Kaplan's bias was his constant caving in to the MPAA in moving up schedules. This was done deliberately to deny Garbus the time to make his case.
Remember the first injunction hearing? Everyone got less than a WEEK's notice... Kaplan allowed himself to be used to completely blindside the defendants.
Remember, time and preparation are good for our side and bad for the MPAA. After all, they really can't come up with any new arguments, and thus benefit from rushing things thru.
"problem is most people today are completly unaware of the rights they are selling off when they get into new technology"
I disagree. The masses CAN be powerful in stopping such grabs of liberty when they want to. In particular, the Betamax case (1984 was it?) that ruled that it was legal to tape shows and movies off TV... Also, the public resoundingly rejected Divx.
The problem is, the case has to be made non-technical and explained... The MPAA/RIAA right now is trying to illegally "circumvent" fair use and the Betamax case law by arguing that digital recording/playback is somehow LEGALLY different from analog..
It's an argument that doesn't hold much legal weight, but the situation is a LOT different than it was back in the 80's...
For one, the media is virtually controlled today by the MPAA/RIAA members. So just WHO is going to report honestly on this case? Coverage of the first DeCSS trial was treated as the stereotypical "forces of good" vs the "evil hackers".
Secondly, the MPAA/RIAA's political influence is astounding. They got the DMCA, arguably the WORST law since "Jim Crowe" (forced segregation), passed UNANIMOUSLY by both parties...
In this case, the only possible relief is the courts. So-called "judge" Kaplan was handpicked for his previous (and likely lucrative future) ties to the MPAA. There are likely MANY more judges up the chain with similar ties, as the MPAA/RIAA have had a nasty habit of suing people lately and have employed many law firms (which produce federal judges).
I was getting a bit worried that this wasn't going to happen, and that a bought and paid for corporate hack, the dishonorable "judge" Kaplan was going to be allowed to have the final word on this...
Kaplan failed to uphold his responsibility in this case in several ways... Among them:
1. He failed to apply the required Constitutionality test to the DMCA. In so doing, he not only interpreted the DMCA in it's most narrow way possible (ignoring the clause that allows circumvention devices for uses OTHER than piracy, such as creation of a Linux DVD player), but he EXTENDED it by adding to it making hyperlinks to DeCSS illegal...
2. He failed to disclose his previous DIRECT ties to the MPAA, which was, if memory serves, being part of a law firm that had once REPRESENTED them. He then refused to recuse himself when it was requested of the defendant. He EXCORIATED Martin Garbus, the lead attorney for 2600, for a much lesser (and trivial) conflict of interest (Garbus once represented a media company later bought by Time-Warner).
Point #1 could be excused as incompetence, though, IMO, that is no excuse at ALL for a federal judge.
Point #2 leads me to believe that the actions in point #1 were because Kaplan is extremely corrupt. He worked for a MPAA lawfirm BEFORE he was a judge, and, likely, he will work for one AFTER. He stood to gain a LOT of money for ruling in the way that he did, for the MPAA. That is impeachable. Judges in particular should be held to the highest standards of character and conduct in a case. For the very reason that Federal judges in particular, weild a TON of power.