DoJ Supports Dismissal of Felten v. RIAA Case 196
phalse phace writes: "The EFF is reporting that the Department of Justice has filed a motion to dismiss the pending Felten v. RIAA case because it's "not ripe" and it fails to address serious First Amendment problems. (Yeah, like threatening to sue someone for presenting their research on digital music access-control technologies isn't a serious First Amendment problem.) The preliminary statement of the DoJ's memorandum states: "Plaintiffs have not been prosecuted under the DMCA, nor have they been threatened with such prosecution...""
How? (Score:3, Interesting)
Re:How? (Score:5, Insightful)
The DoJ (well, John Ashcroft in his official capacity) is being sued by Felten et al. I'm not certain exactly what they're trying to get into case law, but I'm pretty sure it's the idea that the DMCA does not apply to legitimate scientific researchers doing legitimate scientific research, or something close to it, and to get that precedent established before anyone is prosecuted or sued for DMCA violation.
This reply from the DoJ basically said "we didn't try to prosecute these particular people, so what are they complaining about?"
I don't know whether, under US law, Felten et al are technically allowed to fight the possibility of a prosecution rather than an actual prosecution, but hats off to them if they are. It'll make the world safer for those who come after them. For example, it'll make things much easier for the first researcher who discovers a security flaw in the SSSCA-mandated DRM system.
Re:How? (Score:3, Informative)
It's easy to tell a civil case from a criminal case, because in a criminal case, the plantiff will always be a government body. (e.g. GigsVT v. State of VA).
Re:How? (Score:1)
Re:How? (Score:3, Informative)
Actually, that's a civil case citation. Hint: in a criminal proceeding, the plaintiff (the State) is always listed first, e.g., "State of XX vs John Doe."
Re:How? (Score:3, Interesting)
Of course, the economic picture is probably not very rosy at Andover now, but one can always wish. Maybe some law firm would donate the services of a junior staffer. They might pick up some clients as a result of the notoriety.
Re:How? (Score:3, Informative)
This is an amicus brief - that is, a statement from someone that is neither the defendant nor plaintiff, but has an interest in the outcome of the case.
RIAA et al has filed a motion to dismiss, and this is additional support from the DoJ.
If you look in the EFF archives, you'll see a wealth of amicus briefs in support of both sides in the recent legal battles - in addition to other material.
MPAA vs 2600
http://www.eff.org/IP/Video/MPAA_DVD_cases/
DVDCCA vs the Internet
http://www.eff.org/IP/Video/DVDCCA_case/
Felten vs RIAA
http://www.eff.org/Legal/Cases/Felten_v_RIAA/#f
DoJ vs Sklyarov.
http://www.eff.org/IP/DMCA/US_v_Sklyarov/
Re:How? (Score:3, Interesting)
It isn't an amicus brief. The Attorney General is a named defendant in the case.
Re:Not an amicus (Score:3, Informative)
Wait to see the response. That will show wheather this is going to fly or not.
Re:Not an amicus (Score:2)
A case will be dismissed when the plaintiff fails to state a claim for which the court can provide a remedy. Basically, you apply the law to the set of facts claimed by the plaintiff.
Summary judgement is appropriate when the application of the law to the set of facts agreed to by the parties resolves the dispute.
Motions for summary judgement will be denied if the outcome depends on a triable fact. Generally, the district court makes findings of fact as the result of hearing the testimony and evidence. Then the case is decided by applying the law to the district court's findings of fact. Those findings of fact are subjected to an 'abuse of discretion' standard, which is a very forgiving standard.
What counts as a threat? (Score:5, Insightful)
>
> participating in the Public Challenge would be
> outside of the scope of the activities
> permitted by the Agreement and could subject
> you and you research team to actions under the
> Digital Millennium Copyright Act ("DMCA").
(Extract from a letter to Prof. Felten, on RIAA letterheaded paper, dated April 9 2001).
Is there some specific legal definition of a threat, or does actually threatening someone count?
Re:What counts as a threat? (Score:1)
Re:What counts as a threat? (Score:3, Insightful)
The way I see it is that the have *already* threatened him.
And they won't threaten *him* again, he's too high
profile. It's the next person who'll suffer if Felten
doesn't get this case through. And the next person
may not have a good lawyer or the resources to defend
themselves.
- MugginsM
Re:What counts as a threat? (Score:2)
And they won't threaten *him* again, he's too high
profile. It's the next person who'll suffer if Felten
doesn't get this case through. And the next person
may not have a good lawyer or the resources to defend
themselves.
So the obvious solutions then, If you come up with anything that you want published that you might be sued under the DMCA for, just send it to Prof Felten and ask him to publish
Thankyou,
Re:What counts as a threat? (Score:1, Flamebait)
Impied threat. (Score:3, Interesting)
Just because it didn't explicitly state that if you don't do what the large thuggish organisation wants (mafia/RIAA) then bad things will happen to you, most people would still feel enough of a threat to take the easy route and avoid any trouble.
Or hopefully go to the police/courts to try to stop the mafia/RIAA from blackmailing them.
ps Made up word from the document - "justiciable"
Re:Impied threat. (Score:3, Informative)
Re:Impied threat. (Score:1, Insightful)
Re:Impied threat. (Score:1)
From atomica.com:
justiciable (ju-stish'?-b?l)
adj.
Appropriate for or subject to court trial: a justiciable charge.
That can be settled by law or a court of law: justiciable disputes.
[Middle English, from Old French, from Medieval Latin iustitiabilis, from Medieval Latin iustitiare, to try, from Latin iustitia, justice. See justice.]
Re:Implied threat. (Score:4, Funny)
Subpoena, n.: From the root "sub", below, and the Latin "poena" for male organ or penis. Therefore, "below the penis" or "by the balls."
I can't believe that they're trying to claim that they didn't make a threat. "Threat? Us? No no no, we only expressed concern over his continued well-being..." What a bunch of cheap thugs!
Re:Implied threat. (Score:1)
Re:Implied threat. (Score:2, Informative)
So pubpoena means under punishment.
Though thats kinda abusing the English use of under to mean more than below.
Re:Impied threat. (Score:2)
Re:Impied threat. (Score:2)
Re:What counts as a threat? (Score:3, Insightful)
As I understand it, yes.
If you read this letter literally, they are just telling him information: that they could prosecute him. An actual threat would be a command or a request to stop infringement. For an example, look at Microsoft's threat to slashdot [slashdot.org]:
"We request immediate action to remove the cited violations from Andover's servers, in accordance with the provisions of the Digital Millennium Copyright Act of 1998."
You know and I know that the RIAA was directly threatening Felten, but (for better or worse) the legal mind takes things very literally. And literally, their letter is just telling him that maybe someone might prosecute him... it's not a statement under penalty of perjury that he is definitely infringing on their stuff.
Ultimately, this is a question for a judge to decide. But a judge will definitely take a statement from the DoJ into consideration, so this is not looking good for the EFF side.
what's next? (Score:1)
Re:what's next? (Score:2)
See here [usconstitution.net] for the amendments.
Ummm. . . someone is confused? (Score:3, Interesting)
Correct me if I'm wrong, but didn't this whole thing come about because Felten was threatened under the DMCA, and told that if he published his research, he would be sued?
The guys at the DoJ did read the case before throwing out their opinion, didn't they?
Re:Ummm. . . someone is confused? (Score:3, Informative)
If they had taken their threats one step farther, Felten and the EFF would have had a very strong case. But since their threats were somewhat implied in a legal sense (they didn't threaten with specific action) this case will be uphill.
I personally think it's still worth a shot, since we may turn up an activist type judge. It's too bad that the DoJ appears to be sympathetic to the RIAA but I can't really fault them for this particular filing, only the sympathies that it seems to betray.
Re:Ummm. . . someone is confused? (Score:3, Interesting)
Re:Ummm. . . someone is confused? (Score:2)
Personally, I think it might be an idea to forget about this case until there is a real threat of prosecution; otherwise the EFF have a potentially long and costly battle to even get the original case into court.
Re:So We Should Sue Felton (Score:2)
IANAL, but Ashcroft seems to have a point... (Score:5, Insightful)
Plaintiffs in the present case ask this Court to strike down the Digital Millennium Copyright Act ("DMCA"), or to declare that their conduct, academic research into computer technology, is not prohibited by that statute . Their claim should be dismissed because it is not justiciable
And given that the DMCA specific exceptions from its prohibitions, including:
conduct (1) by a school or library to determine whether to purchase a copyrighted product ; (2) for law enforcement purposes; (3) to achieve interoperability of computer programs; (4) necessary to engage in encryption research; (5) necessary to limit the Internet access of minors; (6) necessary to protect personally identifying information; or (7) necessary to engage in security testing of a computer system. 17 U.S .C. 1201 (d) -(j).
It seems that any research by Felten & Co. would be covered under (3), (4), (6), and (7). Thus, isn't the DoJ's motion for dimissial justified?
Re:IANAL, but Ashcroft seems to have a point... (Score:5, Insightful)
Only if it sets a precedent. However, so far, we don't have any guarantee that the DoJ won't "forget" those articles when the next such case comes up, or somehow things that they are not applicable. The RIAA dropped their charges, thus the only goal for Felten to pursue this was to get a precedent. With this dismissal, I think the DoJ nicely avoided setting one...
Re:IANAL, but Ashcroft seems to have a point... (Score:5, Insightful)
Re:IANAL, but Ashcroft seems to have a point... (Score:1)
Re:IANAL, but Ashcroft seems to have a point... (Score:2, Informative)
And point 4 didn't keep Dimitri out of jail.
Big Business and the courts just apply the law however they want.
you'd think so but,... (Score:3, Insightful)
You do x. Someone threatens to apply law Y against you (which has nothing to do with x, or cryptically permits x).
Do you sit there and spend your money against a frivolous case in an environment where (a) a good lawyer could convincingly argue that Y does apply, (b) the judiciary is perceived as 'bought', (c) the general public does not understand that Y does not apply because they understand neither x, nor Y.
Even if you win, it might cost you big time. Financially, you could still lose. The only people who would fight that fight would do so out of principle (and such people are stronger than I and I salute them).
In such cases, it strikes me that setting a precendent that such a suit is, indeed, frivolous, and without merit, would be a good idea. Isn't that what case law is all about, establishing precedents to make it easier to prosecute or defend similar cases in the future?
So, if someone threatens to sue you (which, IIRC (and IANAL), is illegal in Canada, at least (threatening to sue, that is -- either sue or don't)), it should be possible to sue for having made a groundless legal threat.
Now, that's not why Felten, et. al. are suing (they're arguing a first amendment issue and not a threat of a nuisance suit), so perhaps their case has no merit on a technicality (suing for the wrong reason), but there should be a legal mechanism for fighting back against legally groundless legal bullying -- IOW, if you threaten to sue me, I should be free to act as if you had, and defend that your suit would have been groundless, and so your threat was harassment.
This strikes me as an acceptable balance between "threatening" to sue but avoiding an all-out suit (so as to not clog the courts) when you're sure you'd have a case, and fighing such "legal bullying" the ability to so threaten would encourage.
Re:IANAL, but Ashcroft seems to have a point... (Score:2)
There's a lot of fine-print beneath that section you quoted. Particularly with regards to encryption research, you need to jump through flaming hoops (ie, get permission from the company, etc.) before you can utilize the exemption. Since it could be argued (hell, has been argued by the RIAA) that they believe these requirements were not fully met, I don't think Felten can feel comfortable that he's protected.
If this suit clarifies even that single matter, then it's probably a worthwhile enterprise.
Is anyone really surprised? (Score:5, Interesting)
The government has been shown to come down on the side of "big business" time and time and time again. Even in it's (in)action against Microsoft, it still benefits not you, not me, not Joe consumer, but Oracle, Sun, and Apple. It's getting to the point where *no one* cares. We've become desensitized to the idea of the government belonging to he who has the cash... You read the paper "Government sides yet again with major corporations" and just shrug it off. "What, a politician has been bought? NOOOO!!" Sarcasm will kill us all.
Yes, the government passed the wiretapping bills the other day. Privacy and freedom are disappearing in the name of "defending democracy and freedom". The Onion's story had it right.
It's mightily convenient. Look at Seattle and the Riots of 1999. There's a groundswell of people who are becoming fed up with what's going on. They don't know why, they can't agree on what to replace what we have with. It's akin to the Revolutions of 1838 (?) in Europe. Protestors without a clear and concise goal, they just know we're pissed off.
The new laws will affect the people who are fighting, in vain, to bring awareness to us all. They will now have to be more careful when planning "political action" (marches, protests, etc), else be labeled "terrorists." The corporations we despise now control the means to watch us. The corporations have gotten military sponsership. Adbusters will be equated to El Quaida. LINUX users will be labeled as "potential internet terrorists". You just watch and see. Ever notice how all these little script kiddies being busted are shown to have had "linux" machines? Linux is being equated to badness. They never mention Windows or Macs in that context, do they? Think.
Yes, the DOJ supporting throwing this out comes as no surprise to me.
I hope they throw out the case. If that doesn't wake you, the so-called last bastions of intellect and free market thinking, nothing will. Yes, you whom Jon Katz has labeled as "The world's future", this is your fight and you're about to lose. You're about to find out that you mean nothing to those with money. How does it feel? Maybe the hippies are on to something. Maybe those left-winger idiots are right. Maybe there is something rotten in this country and it's not the free-market. There is no free-market.
The faster they throw out this case, the closer we'll be to the end. Of what, I don't know. It's time for a change.
Jesus, I need to get off the decaf.
No, not really (Score:1)
Re:No, not really (Score:3, Informative)
JEEZ (Score:1)
"make it possible to obtain e-mail message header information, Internet user web browsing patterns, and "stored" voicemail without a wiretap order"
IMHO this would mean that (as I try to do on most sites) you use web anonymizers and try to leave as little information about yourself as possible (just to avoid spam basically) you can easily become a suspect because you "cover your tracks"
my 2cts
Re:No, not really, no its much worse actualy (Score:3, Interesting)
all digital inteactive devices must be security certified by the dept of commerce. Their definition of digital interactive device is so vage that it will not only include you automobile with its computer and radio, but even your microwave oven. Everybody is talking about it like its a content management scheme, which it is to a large extent and maybe that's what its intended to be but when you actualy read it, you see no verbage limiting it to content management. We are supposed to assume that the authorities are smart enough to know what the legislation meant. here's a link to the PDF (yuck) file [sourceforge.net] it's a 4.586 Mb download. The thing that bothers me the most about it is how in the world is the DoC going to have the expertise to certify all of the software/hardware combinations? The only answer I can come up with is to contract with industry experts to do it, imagine have Microsoft employees certifying the security of a linux distro.
My crystal ball says that means passport technology will be manditory to see anything from a big-company website. When all of the significant content on the web is passport managed it'll get to the point when M$ will get brazen enough to change the EULA so that when you go to a protectected site, you will have unknowingly have agreed to pay Microsoft a fee for the passport service (you have to read the EULA each time you use it to know what you're agreeing to). The royalties are automaticaly deducted from your CC (number already on file at Microsoft) for fee for view content. and there you'll be stuck with Microsoft.
There is no way that Linux will ever be certifiable because we have both the source code and a complier. There will be no Linux to keep Microsoft's feet to the fire driving improvement for everybody and Microsoft's QC department will once again be a puppet for the legal and marketing departments. In short everbody loses except Microsoft.
See hyperinflation... (Score:2)
Nobody will benefit economically. Not even MS, though they will in the initial phase.
Who will benefit? Well, hyperinflation often leads to a dictatorship or a military takeover, and price controls.
Re:Is anyone really surprised? (Score:2)
Yes, the DOJ supporting throwing this out comes as no surprise to me.
You don't seem to acknowledge that the attorney general is a named defendant in the case. IANAL but I would guess it is his job to defend the federal government from suits. He cannot just sit back and let the courts award whatever damages the plaintiffs ask for.
Re:Is anyone really surprised? (Score:3, Informative)
"(a) In an action, suit, or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn into question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality..."
While one side or the other may or may not be big business in a particular case, the Attorney General is showing up to make sure Congress' laws don't get thrown out without being properly defended.
Six String Samurai (Score:1, Offtopic)
Nice tuxedo to die in!
Re:Is anyone really surprised? (Score:3, Insightful)
Well, it's the DOJ's job to defend laws that people attack. That's just the way government works. If a corporation sued the government the DOJ would still defend the government.
Now, passing the DMCA was due to business pressure on congress (I'm sure). But to argue that the DOJ is in the lap of big business because they are defending existing laws is absurd.
A letter from the UN HC Human Rights (Score:4, Interesting)
I'm glad to see some support like this.
Re:Can't agree on what to replace it with? (Score:2)
And that's just the first point on your list. Eliminate electoral college? Not a chance! Ban campaign ads on TV? Dream on! Term limits for congressmen? Now how can you make enough "income" with a limited term?? No, I'm afraid the govermnment is too rotten to change itself...
Re:Can't agree on what to replace it with? (Score:2)
It needs to be understood by Congress that the people are pissed off. If they don't vote in such reforms, they'll be out on their ass anyway and we'll vote in someone who will make the reforms. Failing that, there will be hell to pay.
Re:Can't agree on what to replace it with? (Score:2)
- Move to direct vote by the American people, say one day a month (or maybe even one day a week) to approve or reject any new proposed legislation. This could be done by some form of electronic voting, since the current method of paper voting
is way to cumbersome for this.
- Reduce the function of Congress to drafting and proposing new legislation for the American people to vote on.
- Create a way for someone not in Congress to
get a proposal considered for voting. Probably
something like requiring X number of signatures.
Benefits to this would include many people regaining the feeling that their vote actually counts for something.Re:Can't agree on what to replace it with? (Score:2)
I don't really trust the current vote counting system, there's no way to check on it. I sure wouldn't trust a version that was written by the current government.
Re:Can't agree on what to replace it with? (Score:2)
Rather:
1) Ban the selling of campaign advertising on television, and
2) Ban discrimination against minority political parties by those benefiting from the grant of a license to a monopoly of a section of the broadcast spectrum.
I'm not sure about term limits. It has its good points and its bad points. Actually, it seems to be about a wash. Fix the advertising & donations problem and it the need for term limits will largely go away.
And in California, term limits hasn't solved all that much.
Somewhat OT:campaign finance reform (Score:2)
campaign finance reform, which among other things bans soft money
Part of the problem here, though, is that banning "soft money" only benefits "big party" candidates and incumbents.
Limiting the value of individual contributions or the ability to "pool" donations to support a single candidate is intended to prevent less-known challengers from competing. A "big party" candidate doesn't really have a lot of difficulty getting a large number of people together to each contribute the maximum amount allowed, but a not-so-famous "small party" candidate has no such hope (the only way to become well known is advertising, which costs money of course). The only chance for a "small party" candidate to compete is to try to find one or more sympathetic generous donors to fund his or her campaigns, at least until the candidate is as well known and understood as a typical "big party" candidate...which current proposed campaign finance limits would prohibit.
I don't think I'd be much against, say, an absolute limit on total spending for a campaign, though I don't know that it'd be feasible to enforce such a rule (If I, of my own free will, pay for some advertising for a candidate, while that candidate has already spent his or her limit, are they now over? Or can some "big party" candidate, or his minions, in turn encourage his followers to do the same thing?
Banning campaign advertising on television, unfortunately, has a similar problem. The mainstream media effectively ONLY reports on the the "big party" candidates, and there is at least SOME bias, in total, towards the slightly-left mainstream party and away from the slightly-right mainstream party (compare to the very-left "Peace and Freedom" party and the very-right "American Independent" party...). Basically, banning television advertising gives up all advertising to whatever politicians that the news reporters like to talk about for free...
Re:Is anyone really surprised? (Score:2)
These freedoms are owned by the people that own the presses. This has become a smaller and smaller group of companies, currently I believe that over 50% of the mass media in the US is owned or controlled by around 5 companies. And I may be understating the concentration.
Re:1838? (Score:2)
Just a motion, not a ruling (Score:2, Insightful)
Oh, it's quite ripe... (Score:1, Funny)
Shocker! (Score:1)
Re:Shocker! (Score:5, Insightful)
You're surprised? Look, here's how it works: the DoJ is charged with defending the Federal Government, especially including laws passed by Congress (whether they like them or not). The DMCA is a law passed by Congress (hopefully it will be ruled unconstitutional, but that hasn't happened yet). The United States is a named defendant in Prof. Felton's (et al) lawsuit; the action challenges the constitutionality of the DMCA.
Therefore, the DoJ is _obligated_ to present a government defense. This is just the normal operation of Constitutional Law proceedings and the functioning of necessarily adversarial litigation. The legal process grinds very slowly, but in the end, it grinds very fine. It mostly gets things right, eventually (but the process takes years, if not decades or even generations). Maybe once in each generation sits a really wise Supreme Court.
This motion in question is a mere skirmish in just one battle that is itself just a small part of a much larger war to retain the Liberty and associated freedoms intended by the framers of the Constitution, all in the face of concerted attacks by monied corporations working through soft-money wholesale bribery of politicians to subvert public rights for their own monopoly-seeking interests. It's not just illegal corruption (for that connotes unusual practices) but it is, rather, full-scale rotten-to-the-core corruption of the entire political system whereby politicians get financed to buy public offices and then pay off their well-healed "friends" (many are big media) that purchased the media time that bought their elections. So very cozy, isn't it? However, that's how it works here in the U.S. of A. lately, like it or not. It'll take real courage and perhaps bloodshed to change this.
Re:Shocker! (Score:2)
It'll take real courage and perhaps bloodshed to change this.
Or maybe something even more radical, like actually voting on Election Day for the candidate who is best on the issues, instead of the one with the best and most advertisements
Just having 10% of the votes be truly informed voters would swing enough important elections to make a BIG difference. Urban areas and large states with a lot of political power are often fairly close to evenly divided between Democrats and Republicans. Critical elections are often very close. Look at 2000 - the difference between the vote for Bush and Gore percentage-wise was very low.
We can do far more far easier with the ballot than with the bullet.
September 11 was enough bloodshed for me and the rest of the USA. We don't need any unnecessary loss of life.
I think the RIAA has no right to sue Felton (Score:1)
It's like this: Some states have laws that say you can shoot dead any intruder that invades your house or propriety. That's fine for dealing with some thief looking to pinch your sterio or PC. You can call that person an intruder because you didn't invite him/her in. But what if you did invite someone in to your house? Can you shoot them? Hell no, You invited them, you started it. As far as I'm concerned, the RIAA invited people like Felton into thair house and handed him the expensive silverware and is now threating to shoot him if he leaves. It's as if the school bully called you out, you pounded him, then he calls the principal on you.
My point is that the RIAA asked for it.
P.S. I am not insinuating that Felton is a thief.
Re:I think the RIAA has no right to sue Felton (Score:4, Informative)
Re:I think the RIAA has no right to sue Felton (Score:2)
A vague, thinly veiled threat is still a threat. Not too many large corporations with expensive lawyers are stupid enough to make the blatant ones unless they're damn sure they're going to win.
Re:A threat is a threat; needs to be treated as su (Score:2)
The "could be subjected to" language is what the RIAA used in its letter. "could be subjected to" the DMCA is a threat, just as much as "could be subjected to a bombing" is.
The big difference is that bombing is illegal, whereas prosecuting someone under the DMCA when you have a good faith belief that they have committed a crime, is not. Whether or not Felton committed a crime is quite arguable (though personally I think this is clearly not prosecutable under the DMCA).
John Ashcroft (Score:1, Flamebait)
He has opposed legislation designed to end workplace discrimination (the Employment Non-Discrimination Act) and to protect vulnerable groups of Americans against hate crimes (the Hate Crimes Prevention Act). He voted to weaken a federal law that helps protect minority communities against "redlining" by banks and other financial institutions.
He voted to roll back clean water protections and introduced legislation to undercut efforts to limit emissions of man-made greenhouse gases.
He has praised the far right magazine Southern Partisan, a neo-Confederate publication that promotes the view, among others, that slavery was beneficial to the slaves.
In just six years in the Senate he introduced or sponsored no fewer than seven different attempted amendments to the Constitution. In 1996 he proposed a radical amendment that would have made it much easier to amend the Constitution, opening the way for disastrous political and ideological mischief.
He voted to eliminate funding for the National Endowment for the Arts
Can anyone explain why this guy gets to be attourney general ?
even more [opposeashcroft.com]
"Only In America" gets a whole new meaning
Getting arrested when you did nothing wrong ? Jep [freesklyarov.org]
Getting executed when you did nothing wrong ? jep [tripod.com]
Rich kids getting of cheap ? duh
Re:John Ashcroft (Score:1)
> attorney general ?
Because he is also a former senator, so his buddies in the Senate confirmed him even though they knew that he was an evil, unscrupulous bastard.
Re:John Ashcroft (Score:3, Insightful)
Why is it that you believe so strongly in freedom, then proceed to try to restrict the freedoms of others; including that freedom to make business or personal decisions based on whatever criteria one wishes?
As for the hate crimes, why should any segment of the population, either homosexuals, blacks, hispanics, jews, christians or penguins deserve any special protections under the law. All crimes are hate crimes. Not just those directed at people because they belong to a certain group.
The so-called "clean water protections" were woefully inadequate and ill-structured and it has been shown any number of times that the pitiful efforts to roll back greenhouse gas emissions will do nothing to stop the purported global warming.
Why on earth should the Government be funding the National Endowment for the Arts? Why should my money be forced to pay for something that a very small portion of the population appreciates?
This guy gets to be attorney general because the representatives of the majority of Americans decided he was suitable for the job.
Get over it.
Re:John Ashcroft (Score:3, Insightful)
Not all crimes are hate crimes. Most crimes committed are done for a tangible benefit of the committer of the crime. For example, a bank robber robs a bank for the tangible benefit of the money achieved. OTOH, people who commit hate crimes have no tangible benefit to themselves; the sole purpose of a hate crime is to denigrate the target of the action.
The so-called "clean water protections" were woefully inadequate and ill-structured and it has been shown any number of times that the pitiful efforts to roll back greenhouse gas emissions will do nothing to stop the purported global warming.
"any number of times" == 0. You are confusing the statement of "inconclusive evidence" with "no effect". There are any number of studies which conclude that there is insufficient evidence to show that cleaning up the air supply will decrease the emission of greenhouse gases. However, you don't need to live in a densely populated, industrial area to know that polluted air causes health problems.
Why on earth should the Government be funding the National Endowment for the Arts? Why should my money be forced to pay for something that a very small portion of the population appreciates?
You're so right. While we're decreasing the budget for the NEA, let's cut out all those subsidies for tobacco farmers. After all, most Americans don't smoke. And let's kill those bailouts for the airline industry. After all, in the wake of the terrorist attacks, most Americans don't fly. And let's cut out funding for the CDC and NIH while we're at it -- most Americans aren't threatened by public health problems; it's just a minority, right? And let's start charging ranchers market prices for grazing on public lands; ranchers are a minority in this country.
If you let me know where you live, I'm sure I could come up with some more specific examples that benefit your community, but don't benefit the majority of Americans. Shall we start cutting all those programs, too?
This guy gets to be attorney general because the representatives of the majority of Americans decided he was suitable for the job.
Get real! Congress pays more attention to corporate checks than they do to the voters who have a choice between Tweedledee and Tweedledum.
Re:John Ashcroft (Score:2)
Neither of the major political parties care very much about "freedom" unless one of their pet special interest groups cares. There is bipartisan support for eroding the civil liberties of those who fall outside the safety net of a pet special interest.As for the hate crimes, why should any segment of the population, either homosexuals, blacks, hispanics, jews, christians or penguins deserve any special protections under the law. All crimes are hate crimes.
At least try to express your argument in well formed sentences. The "all-crimes-are-hate-crimes" line is false and demonstrates an ignorance of
the issue at hand. And it has nothing to do with
"special protections" for people who "belong to a certain group" (hint: if it did, it would be unconstitutional)
and it has been shown any number of times that the pitiful efforts to roll back greenhouse gas emissions will do nothing to stop the purported global warming.
Utter nonsense. In global warming forecasts presented to senate committees by leading scientists, the primary variable is global policy
on emissions.
This guy gets to be attorney general because the representatives of the majority of Americans decided he was suitable for the job.
ROFL. Not only do you not understand the issues
you beligerantly rant about, you don't understand neither
your own electoral system either.
Re:John Ashcroft (Score:2)
Who modded this trash up? I've got to get back to work, so I can't address all the wrong-headed BS in here, but I will address the blatant slander of calling John Ashcroft a racist. During his tenure as Governor of Missouri, Ashcroft appointed more African-Americans to the bench than all his predecessors combined. He has consistently been on the right side of racial issues. He did not "distort" the record of Ronnie White, he opposed him on the basis of his rulings on the death penalty, a position he is just as entitled to take as anyone else. It's a sad day in America now that opposing one black man's confirmation gets you branded as a racist for life.
Yeah, Im Surprised. (Score:1, Insightful)
From an administration that is trying to let Microsoft off as much as possible and to try and take as many personal rights as possible, you would not expect different. That is, they are trying to make sure that nobody can challenge the taking of these rights.
Hopeflly, the courts will protect US now from the administration and congress
False Economy (Score:1, Interesting)
The same could be said for drugs: why are they illegal? surely they are less dangerous than guns? The reality is, that if most drugs were legal, their market value would drop to nothing - you would see fields of weed like you see fields of maze. All the money thats made in the business would stop, and allot of rich people would become poor.
Hasn't Felten just won (Score:2, Insightful)
succeeds, and Felten publishes the results and
then the RIAA asks the DOJ to prosecute his team under the DMCA, the DOJ and Asscop end up with seious egg on their faces, because the DOJ established that Felten was immune from persecution under the DMCA. Truly brilliant actually.
To protect the DMCA and the pending SSSCA (Score:1)
Fundamental Understanding (Score:2, Insightful)
Senator X thinks: wow, the interent is used to do a lot of bad things, therefore its bad -> Lets "fix it." They don't understand that things like the DMCA violate the very spirit of innovation which brough about the internet and the Tech Boom.
In addition Senator Y may not have an opinion on the DMCA(or similar legislation) but when he recieves a fat check that says "DMCA-Yes" on the back from the RIAA(or similar) what is he going to vote for? The only thing that we can possibly do is, for the sort-term, write to our representative : 1,000 letters saying "DMCA-NO" may just override the RIAAs check (at least for somewhat honest senators(there are still a few right?)) In the long term it has to be made an issue: this is far more difficult because the avereage person will say that reverse enginerring is bad because itstealing others ideas, etc... the average person needs to be made aware of the negative effects of legistation such as the DMCA.
NeuTurbo
--------
The Essential Rules of Politics (Score:2, Funny)
2. See #1.
The DMCA is a good read... (Score:1)
How the crap can they sue hackers under this?
It says in the actual bill ( Which is imossible to find thanks to our lovely congression website) that an exception that gets technology out from under this bill is "to achieve the interoperability of computer programs". So anything that will let a copyrighted work be used under a different OS (say BeOS), is allowed even is it decrypts and circumvents the copyright.
SO if felton were to make a computer program that crapped when it detected a watermark then say that it were necessary to remove the water mark and publish a program to do it so his program could play protected music, he would be protected. (Again, IANAL)
What makes tthis case so damn annoying though is that the educational exemption is only if the school were planning to buy a copyrighted work. So Felton can still be sued, even though he was with a school.
Secondsun
Yes, IANAL.
PS: May favorite exception is "necessary to limit internet access to minors". I just find that humorous.
Just because this has been filed... (Score:5, Insightful)
Until a judge says that, however, there is still a case. The judge may concern the DoJ's brief and drop the case, or may decide that there is very much merit to the 'bullying' that the case involves, and allows it to go forward.
IMO, a reasonable judge would see that there's enough questionable activities, either by DMCA or by RIAA, that allowing facts to be heard and arguements made would be more beneficial to defining the law better(*) than to allow it to go uncontested.
(*) 'defining the law' may be as to set a precident on when or where DMCA is applicable, or to possible call into question it's constitutionality. In other words, just because the judge takes the case does not necessarily mean a favorable outcome for the /.-mentality.
Explain to me... (Score:3, Interesting)
I mean we haven't had ONE SINGLE challenge to the (probably unconstitutional) DMCA yet.
Why is the DMCA then considered 'ripe'?
Is the Internet (at a whole 5 years old as a 'mass medium') ripe?
Seems to me that 'the man' wants it both ways...They want the 'net to be considered 'mature' when it suits them..and 'not ripe' when it suits THEM!
We are in a very dangerous time....a time where the tables seem about to turn. A time where the Russians advise THEIR citizens to be wary of the U.S.! A time where most of the world (and many of our own citizens) fear and distrust OUR government. A time where law enforcement can propose whatever they want (Constitution/Bill of Rights be damned) and Congress and the President say: "yup, yup, yup". A time where citizens' rights are secondary to corporate greed.
Finally, the obscenity of terrorism isn't just what happened on September 11th, 2001. It's what has happened in Congress since then.
My only hope is that the citizens of our great country wake up to what their 'leaders' are really doing TO them! If not, then we're truly screwed.....
So give a presentation! (Score:4, Insightful)
Re:So give a presentation! (Score:2)
Not if he's trying to demonstrate to a court that he is a victim of "chilling effect."
Re:So give a presentation! (Score:2)
Re:So give a presentation! (Score:2)
Re:So give a presentation! (Score:2)
Nah, the RIAA would let him proceed because fighting over a dead watermarking standard just isn't worth it. \
The RIAA knows that if they lost, their biggest gun (the DMCA) would be hurtin'. And, frankly, they don't even give a damn about that particular watermarking technology anymore.
Re:So give a presentation! (Score:2)
Re:So give a presentation! (Score:3, Informative)
-jhp
Afraid of setting precedent for the Dmitry Case? (Score:3, Insightful)
No doubt the goverment would rather focus on Skylov, since they have a stronger case. The Feldon case has much more popular sympathy, since its a professor of a well known school. It's hard trying to convince the public of Dmitry's innocence, since all they see is a Russian hacker who broke the law.
Re:Afraid of setting precedent for the Dmitry Case (Score:2)
Since Sklyarov was in Russia when he did his research, I'd say he didn't break the law.
Since bin Laden was in Afghanistan when he planned the World Trade Center bombing, would you say that he didn't break the law either?
"unripe" == prior constraint? (Score:4, Informative)
So, if unripe cases can't be tried, is the only way to overturn a bad law to break it and get caught, hoping that unconstitutionality will save your ass in the end (the 2600 case)? If no one is brave enough to martyr themselves, isn't that what judges call "a chilling effect"?
So the DMCA IS content based? (Score:2)
Funny, in another Court they argue that the DMCA is not content based, but hear they argue that you have to see the content to make the decision. Which is it, DOJ?
Brief explanation of "ripeness" (Score:5, Informative)
Ripeness, typically, is applied to cases that challenge the constitutionality of a law "as applied" to a particular set of facts, but before the agency charged with enforcing the law has actually applied the law in that manner. It is essentially a challenge to the judicial branch's jurisdiction - asserting that there is not yet an actual controversy. Looked at another way, analysis of a law's future hypothetical applications is too abstract for any court to perform reliably, and is therefore "non-justiciable." (Contrary to some comments, justiciability is not a made-up word, it's a well-settled legal doctrine.)
Although I've not read the DOJ's papers, I would expect their ripeness challenge to be along these lines: "We are the agency charged with criminal prosecution under the DMCA. We've never prosecuted or even threatened to prosecute the professor who is the plaintiff in this suit. Nor have we prosecuted or threatened to prosecute under the DMCA *any* member of academia on the basis of an academic presentation. Hence, there is insufficient basis to conclude that the DOJ would ever apply the DMCA to criminally prosecute academic speech, and this action is therefore not ripe."
That argument would normally be a strong one, and if you think about it, it makes sense. Virtually everyone who posts here is worried that someday they might be prosecuted under the DMCA, but until that happens to you, or there's a credible threat that it will happen to you, you don't have a lawsuit. The professor's case is modestly different, because the RIAA threatened to pursue charges against him. But as a private party, the RIAA cannot bring criminal charges unless the DOJ decides those charges are well-founded. Apparently, it has not so decided - hence, the ripeness challenge.
But wait -- don't give up hope yet. This is a First Amendment case, which opens up some other possibilities. A First Amendment challenge to the constitutionality of a law can be brought, not just to the law "as applied" to a particular set of facts, but to the law "on its face." The basis for a "facial" challenge is the "chilling effect" that an overbroad statute may have on speech, even if the speech itself is never prosecuted. Since free speech is highly valued, courts will apply this level of scrutiny to a statute that creates a substantial likelihood that worried people will voluntarily curtail their own protected speech, even if they are never prosecuted. In essence, it's a ripeness exception.
That argument ought to have a fair chance of success here. (Don't forget that the DOJ's mere motion does not decide the issue - the plaintiff gets to file a brief opposing the motion, and the judge makes the decision, not the DOJ.) A, the RIAA threatened to pursue criminal charges under the DMCA, and B, the professor cancelled his presentation as a result. Even though the DOJ has never actually applied the DMCA in this manner, if the judge looks at the "face" (the text) of the DMCA and finds that it could be construed to criminalize what the professor planned to do, the judge should find that the DMCA has an unconstitutional "chilling effect" on protected academic speech, and deny the DOJ's motion.
* * *
Re:Brief explanation of "ripeness" (Score:2)
Isn't the fact that the DOJ is even involved suggest that some sort of criminal affair is going on? If this was a civil affair the DOJ would have no part in it. It seems to me the fact that the DOJ is in a position to either drop this or go forward implies that someone made a criminal charge, and the police got involved.
Regardless of the eventual outcome of this criminal investigation this has cost Dr. Felten plenty of time and money and in effect punished him. I am presuming of course the legal system will not apologize and reimburse him for his espenses after dropping the case.
To me this is the greatest shortcoming of our legal system. No matter how innocent you are you will never enter into the legal system and come out of it unscathed. The best you can do is lose a ton of money and time. I have heard of people losing their jobs, wives, children, vast portions of their lives even though were innocent all without compensation of any sort after the dust settles. It's a shame really.
Re:Brief explanation of "ripeness" (Score:2)
I don't know whether the DOJ was originally named as a defendant in this case, or whether it intervened. But in either event, its presence in the suit does not "suggest that some kind of criminal affair is going on." The DOJ may very well be interested in forcefully advocating the position that Dr. Feltner's academic pursuits are NOT criminal. No, really -- I'm totally serious. A law that broadly criminalized aspects of academic instruction would almost certainly be tossed out on constitutional First Amendment grounds. If the DOJ feels that any aspect of the DMCA is a useful tool, it would want to urge the court to adopt a so-called "limiting construction" of the DMCA that would preclude its future application in an unconstitutional way, thus saving it from complete invalidation.
As for whether the "legal system" will apologize to Dr. Felten and reimburse him for his expenses after "dropping the case," don't forget that Dr. Felten is the plaintiff who brought the case in the first place. Don't get me wrong - I think the RIAA's pressuring gave him valid grounds for seeking legal action. But at this point, the only person who has the power to "drop the case" is Dr. Felten.
I believe the real point of your inquiry is the unfairness of burdening private citizens with onerous legal fees, simply because they oppose a law they believe is unjust. However, although the "American rule" normally requires each party to pay his/her own legal fees, there are exceptions to this rule where the litigation opponent uses abusive tactics or takes a substantially unjustified position, where the litigation confers a public benefit, and where (as here) a private citizen litigates against a government opponent. These exceptions do not always prevent the unfair results that concern you, but they are a step in the right direction.
* * *
Re:Brief explanation of "ripeness" (Score:2)
My rant about the legal system was not really about this case (I now understand the action was initiated by Dr. Felten) but just a general critisism of the way we run our judicial system. I have always advocated that for a criminal justice system to be fair and just innocent people ought to be able to enter the system and leave it unscathed (seems logical to me). As a programmer I write lots and lots of code and I understand that it's not always possible to take into account every combination of factors but I do test. I test at every step to make sure my code is behaving properly under unexpected circumstances.
As an insider in the legal system perhaps you can give me your perspective on this. If I chose a thousand random black people and a thousand random white people, a thousand random poor people, and a thousand random rich people and threw them into the legal system by accusing them of some serious crime (say rape) how many of them would avoid jail? How many of them would avoid bankrupcy, how many of them would still have their jobs, wives or kids after it was all over? Keep in mind all of these people are actually innocent. As an outsider my guess is that the poor and the black would suffer much worse consequences then the white and the rich. This is how I test my code by throwing unexpected input into it. I think we ought to regularly test the legal system this way and publish the results from year to year. It would be an eye opening experience.
Re:Brief explanation of "ripeness" (Score:2, Insightful)
Now, about your random testing proposal for the criminal justice system. I suspect, once you think about it, you'll realize you don't really mean it. Your proposal would subject no less than 4000 human beings to potential criminal charges and penal consequences, at "random," for the sake of "testing." I'm sure you'll acknowledge that, at least in this respect, human beings are qualitatively *different* from mere data input. Data can be thrashed, crashed, screwed, blued and tattooed for testing purposes, because it doesn't suffer, wince, or file lawsuits.
And there you have the principal problem with systems analysis of human-relationship systems such as our legal system. They are not objectively testable without violating the moral code that makes us want to test them in the first place. If you wonder why "The Law" seems less consistent and rational than C++ code, consider that there is no morally acceptable human counterpart to the debugger.
I agree, though, that the criminal justice system penalizes the "poor and the black" (and brown, and even not-quite-white) disproportionately. There are many proposals for how to remedy this situation. I think monitoring of racial profiling, and availability of DNA testing to convicts/suspects, would be good steps toward equity. However, I think that the legal system only reflects and concentrates the prejudices of society at large, so I think a more systemic purging is necessary to correct this problem.
(P.S. - I'm posting without the "bonus" because I'm veering a bit off-topic.)
* * *
I agree, and in addition... (Score:3, Insightful)
I also have not yet read the brief, but I expect the mootness argument to be hanging in the wings given its Article III roots and the apparent desire of the RIAA to pull out every trick in the bag to stop to what appears to be the strongest (and possibly successful) attempt to invalidate the RIAA's favorite statute. Here's rooting for Prof. Felten.
Canadian Copyright Law (Score:3, Informative)
I thought that Canadian Slashdot readers and Slashdot readers of other nationalities with an interest in the WCT, DMCA or other local equivalent might be interested in the following links:
http://www.pch.gc.ca/culture/cult_ind/wipodp_e.ht
(This is a paper prepared by consultants regarding what changes would need to be made to Canadian copyright law to comply with the WIPO Copyright Treaty.)
I think the section on Aricle 11 will be of particular interest to Slashdot readers. This paragraph caught my eye: http://strategis.ic.gc.ca/SSG/rp01100e.html The documents referred to are "Consultation Paper on Digital Copyright Issues" and "Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet" http://strategis.ic.gc.ca/SSG/rp01099e.html
(This is the paper "Consultation Paper on Digital Copyright Issues" mentioned above.)
From section 4.2: As stated above, the deadline for comments on these papers is October 22, 2001, so have your say: http://strategis.ic.gc.ca/SSG/rp01100e.html