Taking a Closer Look at the P2P Subpoenas

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.

Re:Political Appointees

[I am Kobayashi]

"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).

Brownback's Own Press Release

[drpentode]

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:poor guy

[Frymaster]

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.

Re:Promising?

[stratjakt]

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.

John Doe: Renaissance Man

[burgburgburg]

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:The problem with "John Doe" lawsuits...

[David Hume]

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).

This is incorrect. The RIAA can obtain a subpoena to the relevant ISP immediately after it files the "John Doe" lawsuit against the unknown defendant. The purpose of the subpoena would be to identify the defendant. After the defendant was identified, the complaint would be amended to add or substitute the defendant, and the legal action would proceed. The court would not allow the action to proceed to judgment against an unidentified defendant who never received notice of the action or an opportunity to respond.

Re:New Bill In Congress

[swillden]

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

Huh? How often do individual copyright holders use the DMCA's expedited subpoena provisions to order a service provider to disclose the identity of real criminals and borderline sociopaths?

The law under discussion is *very* specific, and it's hard to see how individuals would make use of it for personal protection. The law in question (which is in US Code Title 17, section 512) says:

(1) Request. - A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

Re:The problem with "John Doe" lawsuits...

[ninewands]

Quoth the poster:

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).

Actually, no ...

If they sue "John Doe" whom they suspect is a customer of RandomInternet due to the IP address recovered from Kazaa/Gnutella/whatever, they can issue a third-party subpoena against RandomInternet for its DHCP server logs to find out who had that IP address at the time in question. This is basic discovery under most jurisdictions' Rules of Civil Procedure. Then, having discovered the name/address/telephone number of "John Doe," they can amend their pleadings to name that individual as the party defendant.

However, it protects users' privacy and due process rights by requiring the plaintiff (RIAA) to file suit alleging a specific incident of infringement rather than allowing them to go on a "fishing expedition," which is what they (the RIAA) CLAIM the current law allows.

Of course, it's no better for the RIAA from a PR point of view, but I just don't think they give a great hairy damn what their customers and potential customers think of them. For this reason, I will continue to not buy new CDs [dontbuycds.org].

Re:Political Appointees

[computerlady]

A little about the judges in this article...

Judge John Roberts is a Bush appointee. He's only in since May 2003. According the the article, he "questioned the RIAA's expansive interpretation of the controversial Digital Millennium Copyright Act (DMCA), which allows copyright holders to glean the identity of alleged infringers without filing a lawsuit first. Roberts said that if he left the door to his library ajar and someone entered, "that doesn't make me liable for copyright infringement."

Judge Douglas Ginsburg is best known for having his nomination by Reagan for the Supreme Court thwarted when he admitted to smoking pot at Harvard. He has protested what he calls "insane drug laws." [salon.com] In 2001, he accused Microsoft of using "saturation bombing" [cnn.com]tactics against Netscape.

Does anyone know the name of the 3rd judge? I haven't found it yet.