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Taking a Closer Look at the P2P Subpoenas

CmdrTaco posted more than 11 years ago | from the this-is-the-real-problem-folks dept.

The Courts 276

An anonymous reader writes "Cnet is reporting a federal appeals court on Tuesday scrutinized the details of a 1998 copyright law, wondering whether it permits the wide-scale unmasking of alleged peer-to-peer pirates by the music industry." The issue, of course, is the constitutionality of the DMCA subpoena process which is among the more evil components of the often-criticized law.

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Postus with the Mostest (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6988458)

On teh spoke!

YUO = ON TEH SPOKE~!11` (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6988756)

If this is not the first post... (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6988460)

I will stuff myself with nerf balls and drink water until my stomach explodes.

As always, links to pictures will be posted.

Re:If this is not the first post... (-1, Flamebait)

arashiakari (633150) | more than 11 years ago | (#6988495)

FINALLY! We will be rid of the Anonymous Coward for good. Sucks to be you, man.

Let's start a trend... (-1, Offtopic)

arashiakari (633150) | more than 11 years ago | (#6988534)

Oh come-on you insensitive clod, I for one welcome our new Nerf(tm)-stuffing overlords!

1. Stuff Nerf(tm)
2. ??? (water?)
3. Overlord!
4. CowboyNeal is my overlord. (BONUS!)

Re:Let's start a trend... (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6988737)

CowboyNeal has had Nerf(tm) phobia ever since the Nerf(tm) CrotchBat(r) incident.

No (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6988465)

I don't want to take a closer look. FP.

you should take a closer look at (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6988472)

my schlong. then you could see it. i troll because i care.

fp (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6988477)

fp

Slashdot ... (2, Funny)

MisanthropicProggram (597526) | more than 11 years ago | (#6988486)

News for Legal Nerds.

On the other hand, I am Interested in the legal ramifications of IT. Oh, never mind...

I guess the legal shit does affect us all.

Re:Slashdot ... (1)

Googol (63685) | more than 11 years ago | (#6988675)

Haven't you heard? Software is Law.

The problem with "John Doe" lawsuits... (5, Interesting)

sixteenraisins (67316) | more than 11 years ago | (#6988499)

...is that the RIAA can file thousands of them arbitrarily, then assign individuals to those lawsuits once they're properly identified. At this point, I wouldn't put this strategy past them.

William

Re:The problem with "John Doe" lawsuits... (3, Insightful)

TopShelf (92521) | more than 11 years ago | (#6988522)

Maybe so, but the burden of identifying the users gets much more complicated under that scenario. By going after the ISP's like they have been, they can scoop up name, address & phone number all in one place.

Re:The problem with "John Doe" lawsuits... (4, Interesting)

turnstyle (588788) | more than 11 years ago | (#6988632)

If they file "John Doe" they don't know who they're actually suing until they've already won (if they lose, end of story).

So, in that scenario, expect a higher percent of sympathetic defendents, rather than fewer...

Not "much more complicated." More expensive. (4, Insightful)

David Hume (200499) | more than 11 years ago | (#6988816)


Maybe so, but the burden of identifying the users gets much more complicated under that scenario. By going after the ISP's like they have been, they can scoop up name, address & phone number all in one place.


Forcing the RIAA to first file "John Doe lawsuits" does not make the burden of identifying users "much more complicated." It may, however, make it initially more expensive.

As stated in the linked article, the RIAA contends that the DMCA allows "copyright holders to glean the identity of alleged infringers without filing a lawsuit first." As also stated in the article, Judge John Roberts, one of the judges of the three judge appellate panel, questioned that interpretation.

If the RIAA is incorrect, and it is forced to first file "John Doe" lawsuits, it will initially be more expensive in that they may have to pay a filing fee for each lawsuit. (It may be possible for them to file a single lawsuit in each jurisdiction where each such suit names numerous "John Doe" defendants. However, in some jurisdictions they may have to pay more for a large, multi-defendant suit.) Once the "John Doe" lawsuits are filed, the RIAA can subpoena the relevant ISPs to identify the "John Doe" defendants. It is, for an entity as well-funded as the RIAA, at most a relatively minor procedure hurdle.

The reason why I say forcing the RIAA to first file "John Doe" lawsuits may only be "initially" more expensive is that in many cases the RIAA would have to file a lawsuit anyway -- i.e., in every case where pre-lawsuit subpoena to idenfity the downloader did not lead to a pre-lawsuit settlement.

Political Appointees (4, Insightful)

Brahmastra (685988) | more than 11 years ago | (#6988501)

Judges are political appointees. If the political parties are paid off by RIAA, MPAA, etc the rulings will be in favour of the RIAA and MPAA. There are a lot of good judges out there, but $$$$ unfortunately wins

Re:Political Appointees (5, Informative)

I am Kobayashi (707740) | more than 11 years ago | (#6988563)

"Judges are political appointees. If the political parties are paid off by RIAA, MPAA, etc the rulings will be in favour of the RIAA and MPAA. There are a lot of good judges out there, but $$$$ unfortunately wins"
But federal judges are lifetime appointees, and are fairly well protected by Article III from direct political influence. So while the judge's ideology and judicial temperment is largely decided by the party in power at the time of the appointment, the judge will be a judge whether her decision is popular or not with her party. Once they are appointed it is very difficult to remove a federal judge(thankfully).

Re:Political Appointees (2, Insightful)

javelinco (652113) | more than 11 years ago | (#6988583)

Most judges are voted for, and if not directly, then indirectly (by voting for those who appoint them) - so VOTE! and stop whining...

Re:Political Appointees (3, Insightful)

Iparadox (660769) | more than 11 years ago | (#6988601)

U.S. Federal District Judges are political appointees -- essentially for as long as they want the job. I fear few people, but District Court Judges top my list. They owe no one. You should be much more concerned about judge shopping - the plaintiff selecting the district and date and time, so that he gets the justice of his choice.

Re:Political Appointees (3, Interesting)

fermion (181285) | more than 11 years ago | (#6988747)

Actually, the opposite is true. For the most part appointed judges, especially those appointed for life, tend to try very hard to interpret the law in a fair and consistent manner. Their political bent only influences the base assumptions and on which side they will err. The number of judges that will ignore the law and rule purely on their own prejudice are few and far between. Unfortunately we have a couple on the US Supreme Court, but we knew they would be when they were appointed.

This has caused problem for more than one president who had hoped to stack the court only to find that the appointed judge did in fact have ethics.

OTOH, the elected judges tend to be the ones that might rule more often on the basis of personal prejudices and personal gain. These judges, like all politicians, have war chests to fill.

So are the RIAA on the road to... (1)

Osrin (599427) | more than 11 years ago | (#6988510)

... making a small number of people very rich indeed? First they made a small number of musicians rich, now they're just making random internet users wealthy. I'm starting to like them, I just need to work out how to get on their list.

Re:So are the RIAA on the road to... (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6988611)

sig: Mathematical truth about girls [netfirms.com] . "Money is the root of all evil" ... hence girls = all evil

Re:So are the RIAA on the road to... (1)

hexdcml (553714) | more than 11 years ago | (#6988779)

Sign up HERE [riaa.com]

Poor babies.. (-1, Flamebait)

Anonymous Coward | more than 11 years ago | (#6988513)

Still looking to find a legal loophole to avoid being penalized for knowingly breaking the law. Sad.

Re:Poor babies.. (5, Insightful)

lone_marauder (642787) | more than 11 years ago | (#6988574)

Still looking to find a legal loophole to avoid being penalized for knowingly breaking the law. Sad.

That someone knowingly breaks an unjust law imparts it no justice.

Re:Poor babies.. (1, Insightful)

Anonymous Coward | more than 11 years ago | (#6988586)

So what percentage of people have to break the law for it to be deemed unjust?

I see plenty of people driving over the speed limit. It must be unjust. Violent sexual assaults are on the rise, those laws must be unjust.

Re:Poor babies.. (1, Insightful)

Anonymous Coward | more than 11 years ago | (#6988638)

So what percentage of people have to break the law for it to be deemed unjust?

How about we base such judgements on an objective assessment of the laws' fairness rather than how many people break it?

Re:Poor babies.. (1)

deltadav (708348) | more than 11 years ago | (#6988655)

'Just'ness is not based on percentages and/or whether or not the law is broken.

Re:Poor babies.. (2, Funny)

Anonymous Coward | more than 11 years ago | (#6988830)

This maybe the case in your country, but in America our laws are based on the will of the people, not arbitrary deemings of "right" and "wrong."

Re:Poor babies.. (1)

FileNotFound (85933) | more than 11 years ago | (#6988686)

Well it just so happens that [motorists.org]

As far as the assults, the percentage is tiny and NOBODY is out trying to lobby for a change in that area.

Re:Poor babies.. (1)

FileNotFound (85933) | more than 11 years ago | (#6988700)

I ought to REALLY preview my posts...
What I meant is :

Well it just so happens that speeding laws are unjust [motorists.org]

As far as the assults, the percentage is tiny and NOBODY is out trying to lobby for a change in that area.

Re:Poor babies.. (1)

KanshuShintai (694567) | more than 11 years ago | (#6988696)

It's unjust because it's unconstitutional and immoral, not because many people are breaking it.

Re:Poor babies.. (0)

Anonymous Coward | more than 11 years ago | (#6988800)

Yes, artificially lowered speed limits that are a product of the 1970s' oil embargo are unjust.

Oh, and what percent of everyone commits violent sexual assualt according to your statistics, anyway? I bet it's ALOT lower than the percentage of those who speed..

Re:Poor babies.. (3, Funny)

grub (11606) | more than 11 years ago | (#6988679)


That someone knowingly breaks an unjust law imparts it no justice.

Which is exactly why I don't free my slaves.

Re:Poor babies.. (2, Insightful)

nairnr (314138) | more than 11 years ago | (#6988772)

The courts decide what laws are just or not. The problem is that people would like to empower themselves this right. I can't go to court and fight a speeding ticket because I didn't think the speed limit matched the speed I thought the road is capable of and expect to win.

Re:Poor babies.. (2, Insightful)

kfg (145172) | more than 11 years ago | (#6988839)

Nevermind the fact that the Constitution itself, and the Bill of Rights in particular, is a finely crafted document part of whose explict purpose is to allow citizens not only to break a certain class of unjust laws, but to do so with little or no risk of prosecution by denying the government, and by extension anyone else ( because all law is enforced at the point of the government's guns) the power to do so.

Specificly, with regards to this case, the RIAA is invoking governmental powers ( court orders) to go on a "fishing expedition" to identify people it has only cursory a priori reason to suspect and without judicial oversight and on an assemblyline basis.

That sort of behaviour is traditionally verboten and shit.

KFG

Re:Poor babies.. (1)

k1llt1me (680945) | more than 11 years ago | (#6988598)

May you remember your post the next time you try to talk your way out of a speeding ticket...

Re:Poor babies.. (1)

Trolling for Profit (686234) | more than 11 years ago | (#6988653)

So would you rather not have speeding laws? It's been tried before.. nevertheless the locals got sick of it. You'd rather shift the money making from CDs to concerts, turning music distribution into a loss leader? Great, but the greater the costs of loss leaders in a market, the greater the barrier of entry. The greater the barrier of entry, the fewer choices and a market ruled by one or two megacorporations. By legalizing the trading of copyright works many jobs will be eliminated and new artists will have a hard time making money because they will be forced to provide their music free of charge. You could also tax blank CD-Rs, but that'd suck if you bought them to hand out Knoppix for free. Now with the American jobs going oversea, you will also see a loss of music industry jobs. Yay for unemployment! Be careful what you wish for, it just might come true.

Re:Poor babies.. (1)

FileNotFound (85933) | more than 11 years ago | (#6988770)

Trying to live up to your username?

As far as speeding laws, way to strawman the argument. But if you must know, yes speeding laws are absurd. [motorists.org]

I bought plenty of CDs at Half.com EVEN when I had the mp3s, why? Because having the official CD was worth the $7-12 to me. I even bought new CDs for $20ish when I had mp3s of it, but I did so feeling ripped off.

There is NO reason that CDs couldn't sell for $5. If they did I swear I'd buy one a day.

Nobody said anything "has to be free". You're just strawmaning and screaming unemployment and whatever other BS you can come up with.

I dare say that if CDs were $5 that the industry would grow and would create jobs. Don't try to tell me that RIAA is doing sales analysis and that $18 is the best cost/demand ratio. If they did such great market research then people wouldn't be trying to boycott them.

Re:Poor babies.. (2, Interesting)

91degrees (207121) | more than 11 years ago | (#6988780)

You'd rather shift the money making from CDs to concerts, turning music distribution into a loss leader?

What makes you think this is the only viable mechanism? There may well be a way to allow a certain amount of file sharing without completely destroying CD sales. Sure, a lot of people say they want copyright law abolished, but most people are reasonable, and will accept a compromise whereby they can get some free music.

File sharing will eventually be dealt with, one way or another, whether it is eliminated or legalised, I have no idea. We just have to wait for whoever has the solution.

I think it was Kierkegaard ... (1)

burgburgburg (574866) | more than 11 years ago | (#6988676)

or perhaps Judas Priest who put it best:

Breakin' the law, breakin' the law!
Breakin' the law, breakin' the law!

I'm pretty sure it was Kierkegaard.

Boy, the Slash Mods Missed This One! (0, Offtopic)

jbottero (585319) | more than 11 years ago | (#6988714)

Still looking to find a legal loophole to avoid being penalized for knowingly breaking the law. Sad. /b>

Under regular Slash Mod rules, isn't the parent a "troll" or "flamebait"? I mean, it attacks one of their babies with (Good Lord!) witty truth!

Re:Poor babies.. (1)

dan501 (223225) | more than 11 years ago | (#6988734)

and damn that rosa parks for knowingly breaking the law.

Re:Poor babies.. (0)

Anonymous Coward | more than 11 years ago | (#6988792)

I bet if Rosa Parks knew you were comparing the civil rights movement to the "I want it all for free free free!" movement she'd probably bus' a cap in yo' ass.

New Bill In Congress (5, Interesting)

slutdot (207042) | more than 11 years ago | (#6988516)

I just read an article [arstechnica.com] about a bill introduced by Sen. Brownback which would "require owners of digital media to file a John Doe lawsuit to obtain the identifying information of an Internet user, rather than simply requesting a subpoena. Currently, the Digital Millennium Copyright Act permits copyright holders to subpoena an Internet service provider for the name and address of a person they believe is violating a copyright. The one-page subpoena request can be issued by a court clerk and doesn't require a judge's signature."

"'There are no checks, no balances, and the alleged pirate has no opportunity to defend themselves,' Brownback said when introducing the bill. 'My colleagues, this issue is about privacy, not piracy. 'This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.'"

Re:New Bill In Congress (1)

ehiris (214677) | more than 11 years ago | (#6988718)

While this bill would be great for protecting citizens form evil "Trusts" such as the RIAA or indivudual very rich corporations, it would make it harder for individuals to protect themselves from real criminals and borderline sociopaths.
There should be different guidelines on the reasons for wich a subpoena can be issued. Removing it completely isn't the best thing to do.

Re:New Bill In Congress (1)

DickBreath (207180) | more than 11 years ago | (#6988789)

...this bill.... would make it harder for individuals to protect themselves from real criminals and borderline sociopaths.

Could you please explain your reasoning? I simply don't see how that is so?

Do you think that I (or you) have turbocharged subpoena powers under the DMCA? Especially in regard to a minor issue such as a mere stalker, molester, or rapist vs. a dangerous copyright thief?

Re:New Bill In Congress (1)

mike77 (519751) | more than 11 years ago | (#6988803)

...by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread...

HA! oh, he's funny!

heh heh heh (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6988519)

he said "sub-penis." heh heh heh. "sub-penis." cool.

It-Doesn't-Matter-To-Them Dept. (4, Insightful)

phlyingpenguin (466669) | more than 11 years ago | (#6988523)

Scott McIntosh, an appellate lawyer with the U.S. Justice Department, assured the court that "we don't think the constitutional questions are substantial ones."

That sounds extremely accurate to the RIAA's view. Nobody has rights, but they have copyrights!

Re:It-Doesn't-Matter-To-Them Dept. (3, Interesting)

gothicpoet (694573) | more than 11 years ago | (#6988762)

And you're surprised that someone from the Ashcroft in-Justice Department would think that increased powers for... well... anyone who claims to be "punishing evil-doers"... is a GOOD thing?

I mean, these are the guys who aren't happy with the over-reaching Patriot Act -- they want a second act that goes even further. And according to recent press they've begun giving the nudge to prosecutors to find ways to get non-terrorists nailed on terrorist charges to radically increase the penalties for other violations of the law.

But of course, all those of us who think that the government would ever transgress our liberties are just paranoid terrorist supporters...

And this is new how? (-1, Offtopic)

ikkonoishi (674762) | more than 11 years ago | (#6988528)

The RIAA is poked once more generating a few more sputters and gasps from slashdot posters.

This isn't even new news.

Its 2 days old.

Could we at least hold off on the next newsflash until they do something else?

Put your hands on the wall... (5, Funny)

winstarman (624536) | more than 11 years ago | (#6988530)

I just want to see more 12-year-old girls get sued. I mean, you can't BUY publicity like that!

"How can we attract attention??? hmm... I dunno.. I've got it! Let's inadvertantly sue a pre-teen-daughter-of-a-single-mom!"

Brilliant. But so very stupid at the same time.

poor guy (4, Funny)

contrasutra (640313) | more than 11 years ago | (#6988536)

the RIAA could be forced to file thousands of "John Doe" lawsuits instead

You KNOW this is someone's actual name. I feel so bad for him.

Then again, Mr.Doe has probobly gotten this all his life, maybe we should help him out? www.savejohndoe.com?

Re:poor guy (4, Informative)

Frymaster (171343) | more than 11 years ago | (#6988603)

You KNOW this is someone's actual name. I feel so bad for him.

yes. he played guitar for the band "x" who were quite popular in souther california during the 1980's. (the band is still together, btw, and you can catch them nov 21 and 22 in l.a. at the "house of blues").

here is a photo of mr. doe [xtheband.com]

poor sucker.

John Doe: Renaissance Man (2, Informative)

burgburgburg (574866) | more than 11 years ago | (#6988750)

Along with being a guitarist, John also co-wrote and co-sings most of the songs with former wife Exene Cervanka.

He also has had a varied acting career [imdb.com] , having been in "Great Balls of Fire", "Georgia", the TV show "Roswell" and of course, the classic "Roadhouse" with Patrick Swayze.

I'm glad to hear that the band is back together.

Re:poor guy (1, Interesting)

ikkonoishi (674762) | more than 11 years ago | (#6988627)

One theory [shu.ac.uk]

Re:poor guy (1)

Jaysyn (203771) | more than 11 years ago | (#6988687)

nah, Brad Pitt took his ass out in the late 90's.

Jaysyn

Not John Doe... (0)

Anonymous Coward | more than 11 years ago | (#6988706)

...that was Joe Black [imdb.com] , you insensitive clod!

Re:poor guy (1)

El (94934) | more than 11 years ago | (#6988722)

I don't feel half as sorry for Mr. John Doe as for the smartass who requested the vanity license plate "NONE", then received every parking ticket issued for which the plate number could not be found...

Re:poor guy (1)

blibbleblobble (526872) | more than 11 years ago | (#6988742)

"You KNOW this is someone's actual name. I feel so bad for him."

On the bright side, if your name was John Doe, you'd get filtered out of all the spam-lists and marketing databases:

"Huh, another joker with false info? Toss it out."

Of course, you might end up having to defend 57 million lawsuits with your name on them, but it would probably crash the court's computer if they convicted you.

Thank god for the 3 branches of gov... (0)

jimi1283 (699887) | more than 11 years ago | (#6988541)

Whenever idiots in DC pass some sweeping law, it's nice to know the courts have a decent chance of overturning it.

Promising? (5, Interesting)

javelinco (652113) | more than 11 years ago | (#6988546)

There were a few promising, and some other, less promising, statements made in this article. So I'll summarize what I like/dislike:

1. Looks like there are some politicians listening to us, a little. And a republican! 'Course, the senator is looking to defend ISPs, but the byproduct is defending the users of that ISP from having their privacy violated for no reason.
2. Looks like there may actually be some traction happening on this issue - all prior "looks" by judges at this issue has been a quick dismissal of the concerns.

Don't Like:
1. The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.
2. Ginsberg doesn't seem to understand the difference in usability for the average user between an FTP site and a P2P file sharing network. Not that his comments are invalid, but certainly the scope is very different. How do we educate our judicial system?

Anyway, some thoughts... take them as you will (I'm sure there are things I missed here).

Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.

Re:Promising? (5, Insightful)

_avs_007 (459738) | more than 11 years ago | (#6988648)

Not that I pirate or condone piracy, but I'll never understand why:

If I record a song/tv show off the radio or TV, then let a friend borrow and copy it, why this is illegal.

This friend could've recorded the song/tv show off the radio/tv themselves.

I suppose you could make an argument over different markets, but lets face it. For pretty much all the popular songs floating around p2p these days, they pretty much play in every market, as every market has a "popular" radio station. All probably owned by ClearChannel too.

I know people have been making arguments about perfect copies and such. But MP3s are lossy. And many of the songs are floating on P2P before the CDs are even released, so they were probably recorded off the radio anyways. Besides, I heard that most of the MP3s floating around P2P are only 128kbit/sec recordings anyways...

Re:Promising? (2, Informative)

stratjakt (596332) | more than 11 years ago | (#6988693)

If I record a song/tv show off the radio or TV, then let a friend borrow and copy it, why this is illegal.

It isnt.

Let 1,000 friends borrow and copy it, you cross the line between personal use and distribution.

Re:Promising? (4, Insightful)

stratjakt (596332) | more than 11 years ago | (#6988661)

The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.

Wow, judges doing their job? Handing down rulings based on law and precedent, rather than trying to legislate from the bench based on politics and personal agendas?

I'm not shocked. These are District of Columbia judges, not Californias.

Ginsberg doesn't seem to understand the difference in usability for the average user between an FTP site and a P2P file sharing network. Not that his comments are invalid, but certainly the scope is very different. How do we educate our judicial system?

He understands it perfectly. FTP is not the super-hard 1337 h4x0r tool you think it is. It's dead simple.

P2P is just FTP with a centralized list/searching tool.

Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.

What does that have to do with anything? The RIAA like anyone else has the right to sue in civil court to resolve grievances. This has nothing to do with criminal law enforcement. There's a big difference between a subpeona and a warrant, or a civil judgement and a fine.

Re:Promising? (2, Insightful)

javelinco (652113) | more than 11 years ago | (#6988716)

Hmmm... catch up please:

1. Part of a judge's job is to determine whether a law is constitutional or not. Please take a Civics course.
2. P2P is just FTP with a centralized list/searching tool. My point exactly. Please try to comprehend the issue before throwing your forehead against it. How much easier is it for people to use P2P than FTP? Well, for the reason you pointed out, the ease of use difference is significant.
3. Sorry if you aren't following the news - I was referring to the "amnesty" that the RIAA has offered. "Amnesty" is misleading, and positions the RIAA as a law enforcement agency. Obviously, before you slam your head in a wall again, the RIAA meant amnesty against their own lawsuits, but that is not what is implied.

I appreciate a good rant as well as anyone else, but hell, let's think before submitting, shall we?

Re:Promising? (0)

Anonymous Coward | more than 11 years ago | (#6988778)

I guess you're new here. stratjakt is always wrong. Best to ignore him.

Re:Promising? (1)

javelinco (652113) | more than 11 years ago | (#6988796)

Danke schon - I wasn't aware of that.

Re:Promising? (2, Insightful)

Planesdragon (210349) | more than 11 years ago | (#6988782)

The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.

Has a defense lawyer put forth a reasonable notion that the DMCA is unconstitutional? Heck, have any of these cases gone against a defendant with the funds to pursue an appeal all the way to the Supreme Court?

Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.

RIAA isn't trying to enforce the law--they are trying to press claims on behalf of their members. They're acting more akin to a collection agency than a police department.

Re:Promising? (1)

Erik_the_Awful (675368) | more than 11 years ago | (#6988809)

"How do we educate our judicial system?"

Take and pass a federal bar exam, file a well written brief that the justices can understand... and prepare "educational" oral arguments :>

-eTa

Re:Promising? (1)

javelinco (652113) | more than 11 years ago | (#6988817)

That's one good way - thanks!

pre-internet days (5, Insightful)

Anonymous Coward | more than 11 years ago | (#6988562)

how many of us in the pre-internet days went to the library to photo copy a text book for a paper and then after the paper was done threw out all the copies?

is this copyright infringement???? probably.

so drawing from this it seems like the RIAA is only interested in short term profit. i mean i use kazaa and i can never find a good selection of Carol King or Arthra Franklin songs. does the RIAA itself feel that their artist have no long term value????

Re:pre-internet days (2, Interesting)

gatzke (2977) | more than 11 years ago | (#6988623)

I have heard fair use for copying out of a book is around 10% of the content. Handing out a chapter might be ok, but handing out copies of the entire book would be a bit much.

Of course, you can get your indian friends (dots not feathers) to bring back LEGAL copies of $100 scientific texts that run for a couple of bucks in india. This is similar to DVD region encoding, but the cheap version is paperback on bad paper.

Re:pre-internet days (0)

Anonymous Coward | more than 11 years ago | (#6988647)

10% ok. so if i download one song for every 10 on a CD then i'm not infriging. :) thxs.

i guy the RIAA will have to limit the number of songs on a CD to 9

Re:pre-internet days (2, Insightful)

clonebarkins (470547) | more than 11 years ago | (#6988659)

i mean i use kazaa and i can never find a good selection of Carol King or Arthra Franklin songs. does the RIAA itself feel that their artist have no long term value????

What? These two sentences are non-sequiters. Not finding Carol King or Aretha Franklin on KaZaA has nothing to do with how the RIAA views the long- (or short-) term value of their artists. Not finding them in a CD store would, however, say much on the subject.

Re:pre-internet days (4, Funny)

kawika (87069) | more than 11 years ago | (#6988666)

i can never find a good selection of Carol King or Arthra Franklin songs

That's because Kazaa doesn't have a filter that will find misspelled words. Carole King, Aretha Franklin. Go forth and plunder.

Brownback's Own Press Release (5, Informative)

drpentode (586437) | more than 11 years ago | (#6988569)

Also of note is a press release [senate.gov] from Sen. Brownback's own office. The press release also discusses the senator's plans for the digital TV broadcast flag.

Re:Brownback's Own Press Release (1)

Sphere1952 (231666) | more than 11 years ago | (#6988637)

From press release: "I support strong protections of intellectual property, and I will stand on my record in support of property rights against any challenge..."

Oh well. Lost my vote.

Re:Brownback's Own Press Release (1)

drpentode (586437) | more than 11 years ago | (#6988670)

He stands for property rights, but he also respects consumer rights. I think he's got a balanced view. Sue the big pirates, but do it in such a way that innocent people don't get hurt (like 12-year-old girls).

Re:Brownback's Own Press Release (4, Insightful)

Sphere1952 (231666) | more than 11 years ago | (#6988727)

I've written thousands of lines of code and I've never seen one cent in royalty payments. I've always been paid for the code I could write, not for the code I've written. I don't see any value in the notion of intellectual property at all. It's a dumb idea.

Oh Canada! (5, Funny)

grub (11606) | more than 11 years ago | (#6988604)


Phew!

I hope the appeals court rules in favour of the file sharers. The thought of all those American P2P evil-doers moving up here to Canada [slashdot.org] was scaring me.

Threats from the record industry side (5, Interesting)

slavitos (666569) | more than 11 years ago | (#6988620)

Perhaps, on a relevant note, yesterday's article in the "Internationa Herald Tribune" (reprinted from NYT) mentioned several reasons why these subpoenas may be counter-productive. One of them was that they will encourage people to move to more secure and anonymous networks (either Freenet-type or so-called "darknets").. It was interesting to hear the response to this argument from the "other side":
"The thing about darknets is that the users show more culpability than people who simply use peer-to-peer," said Randy Saaf, chief executive of MediaDefender, a music technology company that does work for the record industry. "When people are found to be using them, they will face stiffer penalties".
Now, from where I stand, this sounds like a threat. Also, I don't think there's any legal basis to threaten anyone with "stiffer penalties" simply for using a better technology to do the same thing.. What do you guys think?

Re:Threats from the record industry side (0)

Anonymous Coward | more than 11 years ago | (#6988634)

you can't hit what you can't see. them's my two bits.

Re:Threats from the record industry side (0)

Anonymous Coward | more than 11 years ago | (#6988788)

A good friend of mine plays baseball in a very special league, he bats .218 and has been blind sense birth! YOU may not be able to hit what you can't see, but he sure can hit what he can HEAR!
(the ball beeps)

How is this on topic? Make enough noise buddy, and just maybe you just might get hit!

Re:Threats from the record industry side (1)

Teflonatron (202441) | more than 11 years ago | (#6988705)

It does sound like a threat.

This is also pretty much the same argument the anti-terrorism movement is using. (i.e., if you are attempting to protect your privacy, you are automatically assumed to have something to hide...)

Re:Threats from the record industry side (2, Interesting)

squiggleslash (241428) | more than 11 years ago | (#6988738)

It's not that they're using a "better technology", it's that the choice of technology seems to be orientated towards not being caught, and if your reason for choosing a technology is that you're less likely to get caught, then it shows you know that what you're doing is wrong.

The 12yo claimed that she thought nothing that was being done was illegal, that her (or her mother's) payment to Kazaa meant she was entitled to the services Kazaa advertised and that she had no reason to believe those services may, in some way, be illegal to make use of in the majority of circumstances.

That defense may well have gotten her somewhere, a court, while finding her guilty of copyright infringement, would almost certainly have slapped the most token damages it could find. We'll never know for sure, as she settled for somewhat less than it would have cost her in legal fees to fight the above.

If someone is seeing a service advertised, paying money for it, and utilizing it, and the service's advertised feature is "Music by the ton", there's a reasonable chance the user doesn't realise that an offense is being committed. Ignorance of the law, or in this case that the authorization you might expect to exist does not, may not be a defense, but it can be a mitigating factor.

If someone is seeing a service advertised where the service's advertised feature is "Music, and the RIAA can't catch you!", then it's pretty safe to assume the user knows an offense is being committed.

The issue is ... (4, Insightful)

JSkills (69686) | more than 11 years ago | (#6988636)

... that the RIAA is looking to circumvent standard legal prodedure by being able to determine the identity of someone they're interesting in suing for copyright infringement before actually filing the lawsuit. This is a privelege typically enjoyed by District Attorneys and the like - certainly not by a private firm looking to file civil suits. If someone is breaking the law, the path should be simple for them: file a lawsuit against them. If the person turns out to be a 12 year old girl or a grandfather, it really shouldn't matter to them. Justice is blind remember?

What their tying to do is (a) use an aggressive interpretation of a new law to their advantage while (b) circumventing standard legal procedure for filing of civil suits.

Throw in the fact that there is a related article on cnet [com.com] about how the RIAA is claiming that P2P networks are "rife with child porn" in order to make P2P seem like more of the devil's work.

Legal Perspective? (2, Interesting)

-Grover (105474) | more than 11 years ago | (#6988649)

All three members of the appeals court appeared to accept the RIAA's contention that peer-to-peer networks are rife with piracy. "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"


Maybe someone has answered this legitly elsewhere, but I would love it if there could be a little light placed on this question since IANAL.

If P2P networks such as KaZaA (et. al) share files in a directory that you have previously downloaded by default, can you truly be held liable for making them available without your knowledge?

Imagine this situation:

I find a friend to OCR scan a copy of a book (which I own legal copy of) to my word processor for "backup" so I can read it if the original is destroyed. Following that, someone comes over to my house, and finds the file which is aptly named and copies it to a disk, and is subsequently caught possessing his "illegal copy". Can I be held accountable for giving him access without my knowledge?

To me it seems these P2P networks automatically make these files available with little knowledge to Joe User trying to find someone who Ripped and Encoded the latest Jay-Z song for use on his new iPod, which he could possibly own, and have a right to possessing a backup.

I know that just because you don't understand a law doesn't mean you can't be held accountable for it. I know distributing files is illegal, but if I don't know they are being distributed via my PC because I'm not "technically adept" is that a crime?

Re:Legal Perspective? (1)

KanshuShintai (694567) | more than 11 years ago | (#6988766)

Couldn't you also argue that since only people who are downloading the files for backup are allowed to download the files, you should be able to expect that sharing the files is no more than a public service to the people who need backups?

Re:Legal Perspective? (5, Funny)

El (94934) | more than 11 years ago | (#6988775)

This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

Hey! I know of a guy who made available over a million copyrighted works! His name is Andrew Carnegie, and he started this lending service called "The New York Library"! Maybe the RIAA should go after him, as he's obviously a notorious pirate!

FACE IT (-1, Flamebait)

Horny Smurf (590916) | more than 11 years ago | (#6988667)

you're a fucking cheapskate and thought you could get music for free. Now go tell me how you only pirate because the music sucks or because it's too expensive.

RIAA has to connect ISPs to infringement... (5, Interesting)

Not_Wiggins (686627) | more than 11 years ago | (#6988707)

It seems that the crux of this issue comes down to who's really infringing on the copyright.

It boils down to how the RIAA is trying to obtain the names and if the ISPs are a participating member of the "theft."

They have the right under the law to get the names of the offenders before they bring suit.

This seems reasonable.

They've chosen to go after the ISPs because they'd have the easiest (if only) way of identifying which people are the "thieves."

HOWEVER, just because the RIAA has the right to go after the names doesn't automatically mean the ISPs have to give them up.

I think this will boil down to deciding who is culpable in the pirating of music. If the RIAA can prove in court that the ISPs are actively infringing on the copyrights, then they'll be open to be sued to get the names of their "accomplices" (ie, Joe Downloader).

However, if the RIAA can't connect the ISPs with the downloaders, then they might be SOL.

It is a similar question faced by gun manufacturers. People would like to see them be liable (responsible) when someone dies from a gunshot wound. I believe it has been held up in court that simply providing the means to commit the crime *isn't* a crime when that wasn't the intention. Put more plainly, if the gun makers intended people to use the guns in crime, then they would be liable. However, since they provide guns for other legal uses, the fact that they can be used for evil isn't a strong legal point.

To make the point more obvious, it would be like making car manufacturers liable when people use cars to run people over. Absurd, I think you'd agree.

I'm hoping the courts will make the similar connection and stop the RIAA subpoenas. To this point, just because the ISP provides the network connectivity that makes P2P pirating possible, it wasn't the original intention. Hence, they aren't delivering a service for the purpose of supporting illegal activity... they're not directly culpable... so they should be able to tell the RIAA, "find your names on your own."

Law is like Microsoft (1)

segment (695309) | more than 11 years ago | (#6988709)


All three members of the appeals court appeared to accept the RIAA's contention that peer-to-peer networks are rife with piracy. "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

Ever notice how Microsoft software tries to take over everything you do on the system, and do it for you... Kind of like a dictator... Seems like the judge is doing the same thing with the statement Is there any legitimate purpose for making available for copying 600 copyrighted works?. Yes there can be a reason. Say someone is part of a study group who has an itinerary to read 600 different works to improve themselves. Should not matter how many works someone is sharing as long as they have permission to do so.

Wireless networks (5, Interesting)

Transfan76 (577070) | more than 11 years ago | (#6988712)

I've been curious how it's going to work with all these open wireless networks hanging around. if someone uses your wireless networks, unbeknown to you, and the RIAA comes after you for copyright infringement, can they hold you legally responsible? Since copyright infringment isn't a criminal offence, and from what I know, there is no law requiring me to secure my wireless network, how can I be held responsible for what some stranger did?

Alleged (0, Interesting)

Anonymous Coward | more than 11 years ago | (#6988739)

Sure, alleged pirates.

These guys should be punished for violating the copyrights of the music industry.

The sad thing is... (3, Insightful)

DroopyStonx (683090) | more than 11 years ago | (#6988781)

The vast majority of these Judges are uneducated when it comes to technology.

You kidding me? I could walk up to any judge and ask him the difference between FTP and P2P and receive nothing but blank stares.

Of COURSE the uneducated are easily manipulated. If you know nothing about cars and you take your car in to get the brakes fixed and they come back and make some BS story up about how your exhause pipe is cracked, how would you know if it's valid or not? The majority of people would just nod and accept that it needs to be fixed rather than checking the validity of the problem. Much like the RIAA is trying to sway judges by saying it's now a medium to trade child porn or whatever bullshit story they come up with.

These people are making decisions on things they know NOTHING about. Why don't people question *that* instead?

counter claims? (2, Insightful)

Anonymous Coward | more than 11 years ago | (#6988790)

So say the RIAA takes me to court.. and I have a legal copy of every song that i downloaded .. and made them available for people who also had legal copies but didn't know how, or couldn't be bothered to rip/encode them so that they could have a copy.

Could you then counter-sue the RIAA? I say we make a library of legal "loaner" cd's for people that they can purchase at the courthouse before trial for $0.01 per CD, just because it's a used cd, doesn't mean you have any less rights to the content on it.

I'd imagine if you entered a stack of 600cd's as evidenece that a) the court clerk would be pissed, and b) the RIAA would start to look pretty stupid.

What am i saying.. i'm canadian.. i'm just timeshifting.. plus i pay for piracy with every blank CD that i buy.. it's a right the lobby has in-advertently given me :)

Rhetorix (1)

GillBates0 (664202) | more than 11 years ago | (#6988813)

"This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

"This case is also about a corporation which wants to sue millions of people," GillBates0 said. "Is there any legitimate purpose for suing millions of people?"

But what was the answer to that question, dammit! I'm dying to know.

Ya'know what sucks... (0)

Anonymous Coward | more than 11 years ago | (#6988815)

is that know for a fact that there are lawyers on this forum! It would be nice, even as Anonymous Cowards to explain us the LAW to us ignorant techies!

Dave..you know who you are!

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