Appeals Court Rules Against RIAA in DMCA Subpoena Case 839
JohnTheFisherman writes "My Way News is reporting that a Federal appeals court ruled that the RIAA can't compel the ISP to provide the name of the downloaders in their case against Verizon. In fact, the court said that one of the arguments the RIAA used 'borders upon the silly.' I believe most here will agree that this is great news." We've been following this case for a while.
Great, but (Score:5, Interesting)
So what does this mean (Score:3, Interesting)
Double Edged Sword (Score:1, Interesting)
In his ruling, the trial judge wrote that Verizon's interpretation "makes little sense from a policy standpoint," and warned that it "would create a huge loophole in Congress' effort to prevent copyright infringement on the Internet."
So Verizon didn't come through with shining colors, but at least the Rediculous Industry Assoc. of America to a hit too. At the very least it means a judge would have to issue a subpoena before any ISP would have to turn over records. And, from what little information is provided in the article, I would have to guess they're going to have a hard time since they tend to make arguements in court that border upon the silly.
Go Judiciary! Wooooo! (Score:5, Interesting)
Re:hee hee (Score:4, Interesting)
Why not go to the source--DARPA? They started this damned Internet thing in the first place. Let the federal government deal with these RIAA arseholes...that would be sweet justice, because the feds are the enablers (via DMCA and other stupid laws) of the RIAA anyway.
A good week for justice (Score:3, Interesting)
Re:Some more info... (Score:5, Interesting)
I love the smell of Irony in the morning! (Score:5, Interesting)
No, but it did say (in effect) that the DMCA protects the ISPs, because the ISPs aren't hosting the files.
Imagine that! The DMCA, lobbied for by the RIAA is coming around to bite them in the ass!
Gotta love the irony!
Full text of the ruling (Score:5, Interesting)
It's interesting that Verizon won more or less on a single point. ISPs who discover that people are storing pirated content on their (the ISP's) servers can avoid getting in trouble by "respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing." That part of the law hasn't changed.
However, Verizon successfully argued that the responsibility to "remove or disable access to the material" does not apply to ISPs that do not store the data, but instead act as mere conduits through which the pirated files travel. And that's exactly what's going on in the case of P2P file sharing - the illegal file is stored on the pirate's computer, not the ISP's servers.
Verizon argued that under the DMCA, in order for a subpoena to be valid, it has to contain information about infringing material "to be removed or access to which is to be disabled". Verizon argued that it can't remove the material or disable access to it. And since that requirement for issuing a subpoena cannot be met, the subpoena process does not apply to Verizon. The court agreed.
The RIAA unsucessfully argued that Verizon could remove access to the infringing material by simply cutting off access to the pirate, but the judge disagreed that that's what the DMCA was talking about when it uses the phrase "diable access".
From the ruling...
No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.
The ruling concludes with some sympathy by the judges for what the RIAA is trying to do, but a refusal to extend the DMCA to technology like P2P that didn't even exist when the DMCA was written. The court said that if the RIAA wants to subpoena ISPs for information about P2P file traders, it will need to get that additional authority from Congress. A good demonstration of judicial restraint, IMHO.
Re:There's a CNN story about this too (Score:4, Interesting)
I like how the MPAA handles this better than RIAA (Score:4, Interesting)
Don't get me wrong, the MPAA is just as zealous over IP as the RIAA, but I saw one of those ads before the trailers when I went to see Matrix III.
You know, the advertisements where they get a camera guy that is in an equipment storage shed talking about how pirating hurts the little guy.
Well, damn, I just felt so horrible after the ad was done that I promised myself I wouldn't pirate Matrix III. Then I saw how horrible it was over the next 2 hours and realized something huge:
The movies that I *don't* want to pirate always end up being pure crap. And the movies that I *do* pirate end up being the ones I later buy on DVD when they come out.
Disney's Pirates ... is a great example of this. "The Ring", "Frailty", "Final Destination 1 & 2", and "Signs" are others.
In fact, looking through my DVD library I'm realizing that there are several movies that I just flat out would have never have bought on DVD had I not seen them online. And I certainly wouldn't have seen them in the overpriced and crowded theatres.
So how many people are like me? And what happens to their profits when we *QUIT* catching these hidden gems online?
Re:Its actually sad (Score:2, Interesting)
Sounds kinda familiar, dosen't it?
Big win for pirates, bigger win for ISPs (Score:2, Interesting)
More importantly, this is a huge win for ISPs. It restores the security ISPs had been given previously in the 80s from the Communications Act--immunity from their customers. The Communications Act was pushed through Congress by the Bells to make sure they couldn't be sued if someone was using their phone service to do something illegal. Just like the USPS isn't responsible if you use the mail to commit a crime, the phone company shouldn't be responsible if you use the phone to commit a crime. This trial restored the protection ISPs had previously assumed.
ISPs shouldn't be responsible to do jack if you use your Internet connection to commit copyright infringement--without a warrant.
ISP's can VOLUNTARILY give out the info (Score:4, Interesting)
Re:Have a reality check (Score:2, Interesting)
To be perfectly honest I don't mind homosexuality in the least. I do mind same-sex marriage
Let's call it what it is, a civicl union, mostly to afford them the same financial benefits as regularly married people.
Invent some new term, but don't do something that most people believe to be against the Bible. That is not the way to achieve goals.
Jeremy
This is a mere technicality (Score:4, Interesting)
The intent of the DMCA's notifcation mechanism, is that the ISP either has to take responsibility for the packets they are transmitting to the rest of the world, or pass the buck to whoever is responsible. In light of that, this ruling appears to subvert the intent of the law.
The issue shouldn't be about who owns a piece of equipment; it should be about who is responsible for that equipment's behavior. DMCA was intended to identify who is responsible for copyright infringement in cases where there is a "common carrier" in the mix. Treating P2P differently than hosting, doesn't make any sense.
This is a victory only by a perverted technicality, using a loophole. It does not mean that the courts have taken pirates' side. If this ruling stands, then the people who passed DMCA are just going to ammend and "clarify" the law.
Re:Have a reality check (Score:3, Interesting)
Already certain companies give benefits to life partners and are in theory vulnerable to the scenario above. Allowing gays to marry would remove that "loophole" and would put gays and straights on equal footing. (that is, marriages of convenience could occur but there is a clear legal process instead of this hazy "life partner" designation)
Why GWB is responsible (Score:2, Interesting)
That causes some of the responsibility to fall onto him. Don't let any president off the hook, until this law is gone. As GWB himself might say: you're either with us, or against us.
Legalise P2P? (Score:4, Interesting)
A standarised fee added to your standard broadband fees, just like road tax in fuel prices. And legal access to all RIAA/MPAA copyrighted material. They are obligated to create a 100% valid, working copy of anything they release (may be allowed a week-two delay since shop appearance) in MP3/DIVX/whatever, and publish it on their official P2P server for everyone to download. And everyone who pays for network access, pays (proportionally to bandwidth) a little extra. Fees are collected through ISPs. And ISPs may provide "cheaper lines", P2P-free, for anyone not interested in P2P. The traffic on that networks monitored, or just P2P-specific services blocked on routers, so if you set up a dedicated webserver, you don't pay RIAA for its traffic.
Re:silly argument (Score:5, Interesting)
From the article:
It would appear the argument that the court found silly was, the "perceived" liability the ISP has with regards to music piracy because the pirated music is downloaded over their systems.
I can see how the Court would view this as silly. I would have ruled it as asinine, personally. Some of the counter arguments were (probably):
In all of these cases, unless you can prove the malice, I think the answer is a resounding NO! Why then should ISP's be responsible for the illegal acts of its subscribers, for which they (ISP) have no specific knowledge of even the occurence of such acts? They shouldn't be. If Verizon has reason to believe that you, the subscriber, are using their services to commit crimes; they will cancel your account and turn you over to the authorities. Verizon takes the position that its subscribers are law-abiding and then handles the exceptions. The RIAA would like the ISPs to take the position that all susbsribers are law-breakers, and need to prove otherwise. While this isn't exactly spelled out, it is a reasonable conclustion to draw.
Well (Score:5, Interesting)
The court also said the following:
The appeals judges said they sympathized with the recording industry, noting that "stakes are large." But the judges said it was not the role of courts to rewrite the 1998 copyright law, "no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries."
In other words, this was a technical ruling.
The difference with Slashdot between other media outlets is that Slashdot doesn't dare mention the damage to the music industry. It's all a "culture movement," or something.
I used to disagree with the RIAA's tactics, but when I think about this situation, I really do have to wonder. There are people illegally trading music files. The RIAA wanted to get their names in order to prosecute them individually (which is what Slashdotters used to say they should do back when they were suing Napster). What was wrong with the RIAA going after people infringing on their copyrights again? What do I lose from them doing that? Nobody has ever offered an actual, cohesive argument. It seems like no matter what they do, Slashdotters are against them preventing piracy of their works.
I notice people here seem to be against software piracy. Movie piracy is about 50/50. Music piracy is maybe 90/10. Why? Convenience? I don't get it. It's wrong no matter the files being traded. You didn't pay to get the music. Nobody seems to care that some human beings paid for a studio and recorded the music for a record label that distributed it for them. Instead, it's, "Down with RIAA!"
I just don't get the revolution, I guess.
Re:Does this apply to non-RIAA material? (Score:3, Interesting)
Re:Go Judicial system! (Score:2, Interesting)
It would be interesting to read the entire appeals' court ruling.
Re:Have a reality check (Score:3, Interesting)
I'm not sure about present law, but until recently, in Canada, a marriage was not legal, unless it was consumated, the specific wording of the law requiring that "semen be deposited in the vagina", i.e. even mere intercourse was not sufficient to consumate the marriage.
Now it is equally interesting that Canada is in the throws of legalizing marriages among homosexuals, for many of the reasons you outine (i.e. there is no legal basis not to, and sufficient basis to require permitting it), so this consumation law is a bit quaint.
However, I am not aware that it has been struck down, or rescinded.
Re:You can't file suit against an IP address. (Score:2, Interesting)
Keep in mind, the ruling did not prevent the RIAA from sueing your arse for making files available for download. It just got a lot more expensive (for the RIAA). They need to file an actual suit as opposed to the simple blackmail scheme they had going until now.
Re:Have a reality check (Score:3, Interesting)
With the major reason (from a legislative POV) for children being a next generation large enough to keep society running, artificial reproduction is irrelevant, and will stay irrelevant until the technology reaches a level where cloned kids (or whatever) start making up a significant part of the workforce that has to pay for such benefits as social security for their elders.
Then there's privacy issues. The society can tell that a gay couple can't naturally reproduce without having to run tests on them, but to determine (for legal purposes) that a heterosexual couple is infertile would require forcing them to disclose the results of medical tests, or even to take those tests. The more non-reproductive couples benefitting from the supposed advantages of marriage, the more pressure it puts on the society to instead violate privacy, as part of a new strategy of only extending those benefits to genuine reproducers.
Of course, this could lead to a system where a gay couple raising a child counted as reproducers and got benefits, while one that wasn't didn't. In the same way, the system could be changed so that potential reproduction would't count for any advantages, just actual reproduction. This would be a form of more equal rights, and might even be a good idea, but it means far, far more than just changing the marriage laws.
Genetic parentage would be irrelevant, just who was paying to get the offspring into the world and raise it to the point where it contributes to society. There are some ethical advantages to that principle, but it creates strange changes in a lot of laws, not just marriage.
Picture a first time home buyer. Under such a system, they can only get Federal income tax credit if they wait until they already have a child (or at least one of them is bearing one), before they buy the house. The IRS could have a rule that you have to get pregnant or adopt in the same year if you want to get a first time home buyer's deduction that year. Now society is penalizing planning ahead to prepare a nuturing environment, for many reproducers.
Or what about the legal status of a couple (or single parent, for that matter) whose sole minor offspring commits a major crime and so appears unlikely to ever become a contributer to society. He goes to prison at 15, and they lose their housing write off unless they get another offspring. (and we have better than usual cause to think just maybe they shouldn't be the ones raising kids) Parents whose sole child has just died at age 7 may find they can't afford their existing lifestyle unless they adopt or become foster parents within the year (and the foster home system, already deeply flawed, gains more financial pressure to pick bad foster parents who are just in it for the money).
Personally, I'll support marriage for just about anybody who claims to want it, with maybe a few exemptions for things such as incestuous unions, with incest defined by relationships close enough for there to be genetic consequences. (Heck, let's take the arguement to an extreme. If a group of wife swappers wants to set up a system to make sure all their collective kids get college, let's say go for it. If all the wives of that guy in Utah gave adult consent, fine, let's call that a marriage too).
Now, how do you make the changes in society to allow it without imposing some serious burdens on the more conventional majority of reproducers, and thus shooting ourselves in our collective feet when we get old enough to collect Social Security, or a young healthy population to fight a war, or whatever comes up that we need a few million not too disfunctional young people?
Re:Legalise P2P? (Score:2, Interesting)
Also you cant really block just file sharing traffic, many have tried and failed, and eventually all traffic will just be encrypted on the fly so it will just look all the same to any filter/evesdropper - it doesnt even need to be strong encryption, just strong enough that it would take a few minutes to break on the fastest machines and variable enough so that the end user can set the strength/key length at will and wham, nothing can stop it, you'll just increase the strength every few months in acordance with moores law and the filters wont be able to catch up. It would need an initial way to get a secure connection and avoid a man-in-the-middle attack by the ISP and then you could create additional connections over that.
Re:Well (Score:5, Interesting)
If the music industry wouldn't sell music for an artificially high price, a lot less people would care to pirate music. Further, a ridicously small part is going to people involved in actually producing that product, most goes into the various instances providing infrastructure for selling that music - the record labels, shops etc. Inform yourself about what young artists get for their first record.
Fact is, music labels as we know them are made redundant by the internet+compression technologies, and that is the real fight they are in. Without the need for an complex and expensive infrastructure, there's suddenly a very low barrier of entry to the market, and this is why the RIAA likes "trusted computing", bdcause they hope this will carry over a higher barrier of entry into the computing age.
A (crude) analogy to that would be if somehow there would have been a influential horse coaches industries when the car was invented. They would also have done anything in their power to prevent this new technology from making them obsolete.
Ask yourself this question:
Why does the record industry not simply put up all their music as mp3s into giant web shops and use their save in infrastructure costs to offer music significantly cheaper? So cheap that many more people would simply buy instead of pirating.
Do you really think this would make getting mp3z easier than it is now?
No, but this would open the door for everyone to enter this market, preventing the record industry from getting their ridicolous margins by demonopolizing the market.
Something similar can be seen with razor blades, I think read somewhere that razor blades are one of the most stolen items in shops. Why? Because nobody in his right mind believes that the price at which they sell is justified.
Knowledge versus Belief (Score:2, Interesting)
You are correct in #2; we're not sure about #1. #3 is definitely false, unless---like I said---you witnessed him, or someone who knows passed the knowledge to you.
Re:Well (Score:5, Interesting)
There are some music peices which are really part of a whole.
Examples that come to mind are Pink Floyd's Dark Side of the Moon, Kraftert's Man Machine or others.
An artist sometimes puts an albumn together not JUST to fill up a record or CDs worth of music but as a single thing. When you say you want to rip one part of it out, I think you're doing a disservice to the artist.
The issue for me is about control and morals. The moral issue is that of cultural exchange- and that's what music, books and movies are. The issue of control is the issue of 'to what length will these companies to go keep control over consumers'.
- Serge
Re:I can't speak for everyone here (Score:5, Interesting)
I think $750 per song for someone not making a profit (what bootleggers truly are) is obscene. My fine could fund the whole Iraqi war. They hold that in front of you to force a settlement. That's harrassment, barratry, and inhumane.
The RIAA has used the money it has ripped off the artists for 70 years to buy more legislation so that it can act as the corporate police. It's time the government goes back to racial profiling or something it's good at, instead of propping up a monopoly that isn't needed for the good of the country.
Re:Have a reality check (Score:3, Interesting)
I feel the term marriage has more connetations than just a union between any couple...traditionally and religiously. So, give everyone the same rights...but, keep the word marriage meaning the same.
Re:hee hee (Score:3, Interesting)
Re:Well (Score:3, Interesting)
Rather then having a long debate about the origins or morality I propose the following as a reasonable principle people should be willing to agree on. Theft (or at least the immorall part of theft) is parasiting on others work to other people's disadvantage and your own advantage. In other words the real theft going on is the people who block (for nothing more than their own greed) progress etc.. etc..
For instance a government that (perfectly legally) taxed the people and then used that money merely for the enjoyment of the ruling class would be stealing!!
So why is the RIAA engaging in this sort of theft? Well, simply the following. It is perfectly possible for MORE people to enjoy the music while the artists (who really do the work in creating it) get MORE money as well. The RIAA is blocking this situation.
Simply put if music was availible on the internet and paid for in some manner where all the profits went to the authors (personally I favor a national tax with the moneys being reimbursed to artists in proportion both to people's rating of usefullness of the material to them and popularity...like canada and england's library reimbursment) things would be better. Even in the less desierable situation where music cost $1 for every CD worth of songs (rather than per song like in iTUNES) authors would be much better off. In other words the classical distribution system where 90% of all costs come from the physical printing, distribution middlemen etc.. is obsolete.
If this situation makes economic sense for everyone involved why don't we have it? After all isn't this what capitalism is about?
BECAUSE, the RIAA with the entrenched power of hoardes of copyrights (which they obtained through obscene monopoly style power...which is another reason to hate them) is resisting this change. The RIAA ONLY makes money from distribution, if normal distribution deals fall through for mp3.com models or other things they are screwed. The only reason the RIAA makes a few motions towards internet distribution is BECAUSE of people like us using the internet to pirate songs and they know if they don't do at least a half-assed measure they will be cut out of the loop entierly.
In short the RIAA is attempting to use copyright law, monopoly power over the artists and other unsavory tactics to UNNECESARILY tax the consumers and producers of music, i.e., to insert itself in the distribution system where it is no longer needed. They are the ones who are stealing.
IF the abstractness of this argument bothers you consider this. The RIAA is advocating a system which deprives poor children of music, educational opportunities etc.. etc.. because they haven't purchased them. A civilized society, realizing that these people couldn't have bought them in the first place, would devise a system allowing the have nots to use IP...after all it hurts no one and helps some.
Yes, it can be hard to see the evil of the RIAA, both because in a system based on the ownership of physical property it is easy to forget that IP really isn't property in the sense land, computers etc.. etc.. are property. Also many of the people on our side just want free music. I would be happy to pay a tax in return for unlimited information access (which in turn would spure more intellectual content creation...what copyright was supposed to do in the first place).
I realize this space isn't quite big enough to give a really detailed argument, anyone wishing to continue this conversation can email me.
Re:Wrong (Score:5, Interesting)
Blatantly copied from one of my previous [slashdot.org] comments, but it's certainly relevant to this discussion.
Quote me:
If you really want to see how the artist is deprived of money, you should check into how much the record industry takes (as a matter of general practice) out of the artist's cut of album sales to cover the cost of broken records using a model which was created when vinyl records were sold. Nevermind the fact that the percentage of CDs broken during shipping is a mere fraction of the number of vinyl records that were broken; they're taking the same cut. Or perhaps you could look at how the industry manipulates artists' contracts using high-powered lawyers to ensure that artists are locked into a single company for eternity without even the option of going out on their own. When an artist is contracted to produce 5 albums, the recording company will often ignore albums that don't sell well, keeping the artist locked into a perpetual contract that actually hinders their ability to create new content. The record company makes a bunch of money from the first album, but gives the artist next to nothing from it, citing "recording, studio, manufacturing, shipping, marketing, promotional costs, etc", then shelves the next 5 or 6 albums when it becomes clear they're not selling as well as the first, but then tells the artist that they've only created one album. And don't go thinking that this only happens rarely, or to small artists. The Dixie Chicks just recently had to sue their label to get more than $4million that was owed to them. If memory serves, they recorded an album that went platinum, for which their label refused to pay them. Talk about real theft.
The "I'm just demoing it" argument has always been a bit weak, though not entirely inaccurate. While there are some folks who really do buy more music when they download, I'm certain that, at least a majority, do not. That being said, I think the real problem is that when people look at a CD, they're thinking less about an artist making it, and more about a multi-national conglomerate mega-corp that produced it and is trying to sell it to them at extremely inflated prices. My personal argument in this whole thing is that I will not put my money into the hands of corrupt organizations that should have been broken up decades ago, with their top brass jailed on RICO violations. They've now grown so bold as to demand to be exempt from all anti-trust lawsuits. This is like the mafia demanding to be exempt from murder prosecutions. I suppose the logic is, "we've been breaking these laws for so long, why don't you just stop bugging us about it?". I do buy CDs, T-shirts, concert tickets, etc from non-RIAA affiliated bands that I like. That is how I show my support. If Metallica wants another dollar from me (I've bought their stuff in the past), they'd best get away from their RIAA whore of a label and stop treating their fans like garbage. I absolutely support the rights of artists and others to make a profit from their intellectual property. What I do not support in any way are corrupt organizations (as defined under US Federal RICO statutes). I will not pay them money, and I will not support them in any way, shape, or form. I believe my argument holds very good water, as the evidence against the major music companies is plain and out in the open. Over the past 50 some-odd years, the entertainment industry has conspired to violate the laws of this country, the sanctity of the American judicial and legislative branchs, and the trust of the American public. This is not to say that they behave better in other places, I just don't have the background information to accuse them of wrongdoing in, say, France that I do for the US.
And from another [slashdot.org] brilliant comment of mine:
I find it amus
Re:Have a reality check (Score:3, Interesting)
Re:hee hee (Score:2, Interesting)
Gore did not say he invented the internet. He didn't even say he created it. He did, however, do a hell of a lot to enable its creators.
Time to Click The Vote! (Score:2, Interesting)
source [mtv.com] "...P2P software was not even a glimmer in anyone's eye when the DMCA was enacted," Chief Judge Douglas H. Ginsburg wrote in the decision. "Furthermore, such testimony as was available to the Congress prior to passage of the DMCA concerned 'hackers' who established unauthorized FTP or BBS sites on the servers of ISPs.