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Judge In RIAA Test Case Calls DMCA Unclear 222

Posted by timothy from the perhaps-the-judge-has-a-tape-deck dept.
otisaardvark writes "BBC News has an interesting article about how the judge has chided Congress for being inept and unclear. There are repercussions for both sides; primarily that the initial verdict will take far, far longer."
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Judge In RIAA Test Case Calls DMCA Unclear More

Judge In RIAA Test Case Calls DMCA Unclear

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  • That has been recognized all along. Its the ambiguites that have been used all to often.

  • wow (Score:1, Insightful)

    by dextr0us ( 565556 )
    finally all you anti american spokespeople can realize that not all judges are morons. This judge is in line with what lawyers have been saying for a long time. ..ehhm...

    the dmca is pointless. take it to court. see who wins. of course, most people will require a pro bono lawyer... but we need more tests of this law so that it can be ruled unconstitutional.

    • Re:wow (Score:2, Informative)

      by neuroticia ( 557805 )
      The judge isn't saying it's pointless. The judge is merely saying that it is poorly worded, and that it will be hard to come to a decision either way in a timely manner.

      This doesn't mean that the judge agrees with it or disagrees with it. Just that the judge doesn't like the way it's worded and would find it hard to rule either way while evaluating it the way judges are supposed to evaluate cases.

      -Sara

      • Too ambiguous? (Re:wow) (Score:3, Insightful)

        by phorm ( 591458 )
        I don't know about American law, but in Canada if a law is ruled as too ambiguous of difficult to interpret, it can be "struck down." In some cases, it helps get rid of bad "catch-all" laws that get thrown into place to deal with one problem, and misinterpreted to be used in other cases for which it is not intended.
        The flip-side to this is that some laws which are good get tossed because of the same reason. In particular this often seems to be in old laws which don't fully apply to new situations. For awhile we had the child-pornography laws knocked down on a similar basis about interpreting them to material on the internet. I think this case is still going through the wheels, in fact.

        Does America have a similar process? Could the DCMA be struck down on the basis of ambiguity or does this just mean that the judge has to sort through what it means himself?

  • Ironic (Score:4, Interesting)

    by Fembot ( 442827 ) on Saturday October 05, 2002 @07:56PM (#4395012)
    Does anyone else here find it ironic that the artical is being run by the British Broadcasting Corporation, and not msnbc/reuters/yahoo etc???
    • Trying to control what we think.

    • Report Plus Case Histroy in Wall Street Journal (Score:4, Interesting)

      by SailorBob ( 146385 ) on Sunday October 06, 2002 @07:30AM (#4396416) Homepage Journal
      Does anyone else here find it ironic that the artical is being run by the British Broadcasting Corporation, and not msnbc/reuters/yahoo etc???

      I've seen alot of these, "why isn't the USA media reporting this" type comments, and all I can say is try reading a REAL newspaper, like the Wall Street Journal, which not only has the article but also list a RIAAvsVerizon FAQ [wsj.com] , a PDF of the Recording Industry Association of America's July 24 motion [wsj.com], and a link to the Electronic Frontier Foundation's court filings [eff.org] page for the case!

      The link for this article is here. [wsj.com]

      And by the way, if you want quality news coverage, typically you've got to pay for it.

      Music Companies Try to Force
      Verizon to Identify Subscriber

      Associated Press

      WASHINGTON -- Music companies tried to persuade a judge on Friday to let them obtain names of Internet file-swappers without going to court first, a move that could dictate how copyright holders deal with Internet piracy in the future.

      Internet service provider Verizon Communications [wsj.com] Inc. is resisting the music industry's subpoena, saying that it could turn Internet providers into a turnstile for piracy suits and put innocent customers at risk.

      U.S. District Judge John D. Bates, who heard the case, lamented ambiguities in the Digital Millennium Copyright Act, which was enacted to uphold copyright laws on the Internet while shielding technology companies from direct liability.

      Congress "could have made this statute clearer," Judge Bates said. "This statute is not organized as being consistent with the argument for either side." Judge Bates said he would try to rule quickly, but lawyers for both sides had no guess of when a decision might arrive.

      The subpoena hearing, which is normally a tame affair, was contentious because the music industry sees it as a test case. If it succeeds, it plans to send reams of cease-and-desist letters to scare file-swappers into taking their collections offline.

      Until now, copyright holders have relied on requests sent to Internet providers to take action on their own against suspected pirates. Almost all Internet providers forbid sharing copyrighted material without permission. But that can take a lot of time, and makes copyright holders reliant on Internet providers to enforce the law. Internet providers don't always respond as well or as quickly as music and movie publishers would prefer. They think individual letters from the maker itself might work better.

      "Wouldn't that be a lot easier way to let people know that they are in fact not anonymous and there could be consequences?" asked Cary Sherman, the Recording Industry Association of America's general counsel.

      Verizon said that since the hundreds of songs up for trade by the anonymous Verizon customer at the center of the case sit on the person's computer rather than Verizon's network, it isn't required to automatically give up the subscriber's name.

      "Verizon was a passive conduit at most," said Eric Holder, a former Justice Department prosecutor who represented Verizon. Mr. Holder said the music industry's strategy could create a contentious relationship between Verizon and its customers and put the Internet provider in the position of handing over names to the music companies without a judicial determination of piracy. "We also don't want to be the policeman in this process," he said.

      Lawyers for the recording industry rejected Verizon's arguments that it had little obligations in the process. Industry lawyer Donald Verrilli said no type of service provider is exempt from having to identify a potential music pirate, no matter where the songs sit.

      Mr. Verrilli also dismissed Verizon's position that its customers have a right to privacy. "You don't have a First Amendment right to steal copyright works," he said.

      The judge disagreed with Mr. Verrilli's assumption that the works were stolen. "Here, there's only an allegation of infringement," Judge Bates said.

      Judge Bates gave few hints as to how he might rule. He asked many detailed questions of both sides. He called some Verizon positions vague, but showed little patience with other arguments advanced by the music industry and movie studios, which also argued on behalf of music publishers.

      Through programs like Kazaa, Morpheus and Gnutella, a person can find virtually any song or movie -- sometimes even before it's released in stores --- and download it for free. On a typical afternoon, about three million people are connected on the Kazaa network and sharing more than 500 million files.

      -- Copyright (c) 2002 Associated Press

      Updated October 4, 2002 9:43 p.m. EDT

  • Recording Inquisition Association of America (Score:5, Insightful)

    by BonThomme ( 239873 ) on Saturday October 05, 2002 @07:58PM (#4395019) Homepage
    "Verizon says it would be unfair to cancel users accounts unless the music companies concerned filed formal legal proceedings that would give the users a chance to fight back.

    But the music industry says that would take too long."

    That's just super. Now if they could just dispense with this habeas corpus nonsense, they could put all their customers in jail.
    • The music industry needs to talk with people who have had their children kidnapped or murdered, and KNOW who did it, but that don't have enough evidence to get an indictment and keep them in jail.

      Due process is a bitch, but it's a reality, a necessity, and it's part of the reason people founded this damned country. (refering to the US) The RIAA wants to have super-rights that no one else has, and so far the DMCA has given them those rights. Hopefully the 'masses' will realize that it's not in their best interest, and convince the gov't to rule the DMCA unconstitutional.

      Although... Isn't there a catch-22 here? The DMCA is a copyright protection device, ruling it unconstitutional would be circumventing a copyright protection device, thus illegal under the DMCA.

      -Sara
      • Although... Isn't there a catch-22 here? The DMCA is a copyright protection device, ruling it unconstitutional would be circumventing a copyright protection device, thus illegal under the DMCA Actually, the DMCA is not a device, it's a law. The "device" refered to by the DMCA is something that you make (a mod chip, a computer program, or even a set of instructions) which allows you to circumvent a copy-protection scheme.

        Even if the scenerio you described was true, remember that the Constitution trumps all other laws The only thing that trumps the Constitution is a Constituitional Amendment.

    • Re:Recording Inquisition Association of America (Score:5, Informative)

      by NumberSyx ( 130129 ) on Saturday October 05, 2002 @11:17PM (#4395521) Journal

      Now if they could just dispense with this habeas corpus nonsense

      I take it you haven't heard, The Bush administration claims the power to detain "enemy combatants" indefinitely without trial, an effective suspension of Habeas Corpus. All they have to do is label you a terrorist and you disappear in the night never to be heard from again.

      • In case you haven't heard (Score:5, Interesting)

        by einhverfr ( 238914 ) <chris...travers@@@gmail...com> on Sunday October 06, 2002 @12:39AM (#4395687) Homepage Journal
        I take it you haven't heard, The Bush administration claims the power to detain "enemy combatants" indefinitely without trial, an effective suspension of Habeas Corpus. All they have to do is label you a terrorist and you disappear in the night never to be heard from again.

        The courts haven't been uncritical of this practice and have not exactly been... cooperative...

        Now what has been scary has been Ashcrofts earlier statements that they would continue to detain people even if a court ordered them not to. In that case, why not just dispense with the court system and let the FBI and INS take over that role....

        Now, you may think this is off-topic, but dispensing with the court system is exactly the path that the RIAA and MPAA are trying to take in this case (RIAA v Verizon) and in lobbying for the bill that gives them the right to use "P2P Warfare."
        • Detaining people without trial and ignoring the courts is a time honored practice in the US. Lincoln did it during the Civil War to secessionist politicians from Maryland.

          • Detaining people without trial and ignoring the courts is a time honored practice in the US. Lincoln did it during the Civil War to secessionist politicians from Maryland.

            The only problem is, Lincoln was a REAL War Time President. The Civil War was legally declared by Congress as set forth by the Constitution. The War on Terrorism was illegally declared by GW Bush and the FoxNews Channel.

            • Detaining people without trial and ignoring the courts is a time honored practice in the US. Lincoln did it during the Civil War to secessionist politicians from Maryland.

              The only problem is, Lincoln was a REAL War Time President. The Civil War was legally declared by Congress as set forth by the Constitution.

              Actually, the War Between the States (that conflict's official name as designated by the US Congress) was in no way legal or appropriate. In 1865, Lincoln, the first Republican president, used force to deny a "distinctly legal and constitutional secession", to use the wording of a recent Vox Day column.

              In addition to recognizing the Southern states' rights under the Constitution to secede, Lincoln violated the Constitution in myriad other ways - anything was permissable so long as it preserved the Union, thhus establishing the precedent that the US government no longer relied or acknowledged the consent of the governed as necessary or proper.

              Here is just a partial list of the ways Lincoln savaged the US Constitution:
              • He "unilaterally suspended the writ of habeas corpus and eventually ordered the federal army to arrest between 13,000 and 38,000 Northern civilians who were suspected of opposing his administration (this is the range of estimates that exists in published literature). These people were never given any due process at all.
              • On May 18, 1864 Lincoln issued an order to General John Dix that read as follows: "You will take possession by military force, of the printing establishments of the New York World and Journal of Commerce . . . and prohibit any further publication thereof . . . you are therefore commanded forthwith to arrest and imprison . . . the editors, proprietors and publishers of aforesaid newspapers." Dix complied, and hundreds of newspapers were censored (see Dean Sprague's Freedom Under Lincoln).
              • Lincoln won New York by 7,000 votes in 1864 "with the help of federal bayonets," according to David Donald in Lincoln Reconsidered; all telegraph communication was censored; the railroads were nationalized; new states were created unconstitutionally; and the Tenth Amendment was all but destroyed by the war.
              • Even Lincoln's own attorney general, Edward Bates, was of the opinion that Lincoln's orchestration of the secession of western Virginia from the rest of the state was unconstitutional. Article IV, Section 3 of the U.S. Constitution reads: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any state be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress" (emphasis added). West Virginia was unconstitutionally carved out of Virginia, and since it did not even exist as a state, its non-existent legislature could not have consented, as required by the Constitution. A puppet government was established in Alexandria, Virginia, run by Republican Party operatives, which guaranteed a few more electoral votes for Lincoln in the 1864 election.
              (Above bullet items snagged from a recent Thomas Dilorenzo column. [lewrockwell.com])

              Lincoln was a bad president, and a worse man. His actions ensured that the US could never again be free, and enshrined total central control as a fundamental principle of government in the incorporatoin clause of the 14th amendment. The game was over back then, but some yankees are just now figuring out what the rest of us have known for a nearly a century and a half: this goverment has no respect for freedom or rights of any kind.

          • No offense to the State of Maryland, but the U.S. Constitution [cornell.edu] provides for suspension of habeas corpus in cases of "in cases of rebellion or invasion."

            That said, the illegitimate son of George I has exceeded his constitutional authority in this case.

            • the U.S. Constitution provides for suspension of habeas corpus in cases of "in cases of rebellion or invasion."

              Where, exactly? I did a quick skim through the Presidential and Judicial Articles, and saw nothing of the sort. The best I could find in the Legislative article (Article I, Section 8) stated that Congress shall have the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions". Didn't see anything there about suspending rights, simply using "the Militia" (and what does that mean? Army, or National Guard?") to "execute the Laws" (which might mean be judge, jury, and executioner, or simply might mean they're empowered as policemen).

              From what I've read (check out FindLaw for past court decisions), almost every time a president has tried to suspend civil liberties in "times of war", it's been later struck down as unconstitutional.

              The most telling case, if I recall correctly, was in the territory of Hawaii in 1942. We'd just been attacked, and the territorial governer imposed some kind of martial law (including, for one, suspending the normal judicial system in favor of a military panel). Okay, so you've got a clear "time of war" (Pearl Harbor), and you've got a territory that isn't even a state. If there was ever a time that martial law could reasonably be introduced, this would be it. And the Supreme Court later struck it all down, saying it was unconstitutional.

              Of course, the ruling came years after it was all over.

              I challenge anyone out there to prove that such suspensions of civil liberties is authorized, and has been allowed to stand. Then, I'd like to see what a definition of "war" is, and whether we're actually in it (the Congress very specifically did NOT declare war on Afghanistan / The Taliban / Al Qaeda).

              I may be wrong (after all, I Am Not A Constitutional Scholar), but I've simply never been able to find anything that supports any of these assertions about suspension of civil liberties....

              That said, the illegitimate son of George I has exceeded his constitutional authority in this case.

              I'll most heartily agree with this -- if the power to suspend habeous corpus (and other rights) exists, it lies with Congress, not with the President or the Attorney General. At least, that's how it appears to me. It's frustrating that the Judicial system takes so long to figure these things out, but I'm confident that, eventually, people's rights will be upheld. I just wish that we didn't have to go through this every time there's a national emergency, and live with 2-5 years of diminished rights before the courts step in and set things straight (or not).

    • That particular paragraph caught my eye too. Hey, in that case, let's just send alleged murderers straight to the gas chamber -- after all, those silly legal procedings take too damn long!

  • It's sad. . . (Score:5, Insightful)

    by PhxBlue ( 562201 ) on Saturday October 05, 2002 @07:59PM (#4395024) Homepage Journal

    . . .that American citizens who're interested in the progress of American case law have to turn to British news corporations to hear it; while all Fox, CNN, MSNBC, etc., can be bothered to report is Bush's latest wag-the-dog blather or Britney Spears' latest bra size.

    It's no surprise to me that the media doesn't want the public educated about the ins and outs of the DMCA, but it is disappointing.

    • Re:It's sad. . . (Score:2, Interesting)

      by Anonymous Coward
      or Britney Spears' latest bra size

      I'm just curious, what's she up to nowadays? C? D? DD??

    • Re:It's sad. . . (Score:2, Insightful)

      by tealover ( 187148 )
      it's also sadder that slashuddites continue to play this game.

      I read about this last week on Salon.com. Unlike Britain, news is not disseminated from one source.

      This site has become so boring and predictable.

      • Re:It's sad. . . (Score:2, Insightful)

        by gilroy ( 155262 )
        Blockquoth the poster:

        This site has become so boring and predictable.

        And yet, for some reason, you keep coming back... slashdot must offer you some value.


      • > This site has become so boring and predictable.

        Bet nobody saw that coming.

      • Unlike Britain, news is not disseminated from one source.

        That's right, we have no other source of information anywhere at all other than that kindly provided by the Bristish Broadcasting Corporation.

    • Isn't it more sad for the British citizens forced into paying 100UKP a year to prop up the BBC? Oh well, at least there news website is a more productive waste of money than the "Perfect Day" adverts they screened at the cinema a few years back. What were they advertising for anyway, it's not like you can choose not to pay them money over here.

      not_cub

      • Where does the money come from for BBC Canada (tv station on digital cable/sat., I can't see the british paying for that, but the Federal Gov. over here wouldn't likely pay for it either.
        • Where does the money come from for BBC Canada (tv station on digital cable/sat., I can't see the british paying for that, but the Federal Gov. over here wouldn't likely pay for it either.
          What do you think that Rogers Cable-TV bill you get every so often is for???
      • Isn't it more sad for the British citizens forced into paying 100UKP a year to prop up the BBC?

        Well I've said it before on /., but I used to think exactly the same until I realised just how much time Sky spend pushing products through the screen at me - it's 33% adverts on almost all channels - the vast majority of these channels show at least 90% repeats, and much of the rest is crap.

        So, I think paying about 10 quid a month for 9 or 10 (or more I guess, I'm not counting the regional channels) channels, NO adverts, mostly original programming and a pretty much unbiased news service (their website has a lot more depth than you might initially think, BTW) is not a bad deal.

        Oh yeah, we also get all the non commercial radio stations thrown in too - I'd hate to be forced to listen to the radio in any country where all the playlists were controlled and designed by the record companies. There must be like 20 tracks on rotation across the US?!
        • So, I think paying about 10 quid a month for 9 or 10 (or more I guess, I'm not counting the regional channels) channels, NO adverts, mostly original programming and a pretty much unbiased news service (their website has a lot more depth than you might initially think, BTW) is not a bad deal.

          Probably it is not a bad deal. However, I want 10 MTV channels and as much primetime Simpsons and Star Trek as I can get my hands on. So being forced to pay 100 quid a month for some other channels I don't even use doesn't seem like such a great deal. If *you* want to watch BBC TV, and listen to BBC radio, and look at the BBC website, then *you* can pay for it. Seems like a better deal to me. You'll notice that I am not saying that the BBC does not provide a quality service (and with millions of pounds being poured into it every year, it had better be). I am saying I resent not being able to opt out of it. If the BBC is such a desirable service, then surely everyone would pony up were it to be made optional?

          not_cub

    • Re:It's sad. . . (Score:5, Funny)

      by Henry V .009 ( 518000 ) on Saturday October 05, 2002 @08:54PM (#4395169) Journal
      I thought you were exagerating until I clicked to www.nytimes.com, and found this article on the front page. [nytimes.com]
      • Thanks for the link. That's a remarkably good article. Much insight into how the teen pop-star phenomenon evolves, and more often than not, dies. (Gee, ya think this might also explain some of the RIAA's "slumping sales" woes?)

    • Yahoo aka AP [yahoo.com] coverage on Thursday (pre trial) and a second story. [yahoo.com]

      Its no surprise that there isn't an "after a single day of trial - nothing happened" article, because well... nothing happened. The BBC didn't have a "one day before the trial started" article so wasn't repeating itself saying nothing new one day later.

  • History Repeats (Score:4, Interesting)

    by Rebel Patriot ( 540101 ) on Saturday October 05, 2002 @08:01PM (#4395030) Journal
    Is it just me, or does anyone else see any similarities between the DMCA and the Sherman Anti-Trust Act? Both are very broad, very indecisive, and ultimately are as powerful or as weak as the body enforcing them.

    For example, the Sherman Anti-Trust Act gave the power to the government to break up trusts 9a.k.a.) monopolies, but never specified any regulations for determining what is and is not a monopoly. The DMCA outlaws the use of circumvention devices, but never really nails down exactly what a circumvention device is.

    Both laws give God-like power to the person enforcing the law, if they wish to do so. The Sherman Anti-Trust Act allowed President Theodore Roosevelt to break up many monopolies in the early 1900s. The DMCA gives the government the ability to throw you under the jail for infringing on some one's copyright in a minor way, even for "fair use".

    The Sherman Anti-Trust Act has long been criticized for its failures by historians and political scientists. Perhaps someday soon they'll see the DMCA in that same light?

    • One Crucial Difference: (Score:5, Insightful)

      by PhxBlue ( 562201 ) on Saturday October 05, 2002 @08:10PM (#4395059) Homepage Journal

      The Sherman AntiTrust Act harnesses government power and focuses it against corporations to protect voting citizens. The DMCA harnesses government power and focuses it against voting citizens to protect corporations.

      You may as well compare the Voting Rights Act with a Jim Crow voting law: yeah, they each used government to determine who could vote; but the latter oppressed Americans, and was therefore morally wrong.

      • You are correct, sir. And to go even further the RIAA wants vigilante powers granted to it so that it may circumvent the US concept of due process and decide who is guilty... acting as judge, jury and executioner as it systematically breaks into computers and destroys private property.
        If you think someone broke into your home and stole from you do you break into their home and steal from them? Not with the protection of the courts you don't. But the RIAA wants that power granted to them through legislation they purchased from congressional representatives and senators
      • Actually, some of the first uses of the Sherman Anti-Trust Act were to break up the unions that were 'monopolizing labor.' It was passed long before Teddy, and to a greater extent Taft, got his hands on it.
      • Several people have pointed out the fact that this statement about the Sherman Anti-Trust Act is incorrect. However, it is also wrong to say that it was only used against unions. It was passed as an antitrust measure: it banned any "conspiracy in restraint of trade." It was first used against corporations but when more corporate-friendly Administrations took power they interpreted strikes to be "conspiracies in restraint of trade" (and the courst agreed with them). The law was therefore meant to ban trusts and ended up banning both trusts and strikes -- it did not ban unions, however, since only the act of striking actually restrained trade.
        I like the analogy, since Congress thought they were protecting the little guy (little artist, that is) with the DMCA. That's why it passed so overwhelmingly -- if representatives had seen it as a tool to entrench big business against consumers, researchers, and programmers, there would have been more opposition. It still probably would have passed, but perhaps with a few amendments to satisfy other interests besides those of copyright holders.

  • I'm a little confused... (Score:3, Interesting)

    by Eric Damron ( 553630 ) on Saturday October 05, 2002 @08:01PM (#4395032)
    "Congress "could have made this statute clearer," he said.

    "This statute is not organised as being consistent with the argument for either side."

    The judge said he would try to rule quickly, but lawyers on both sides could not estimate when a decision might arrive."

    The only way that I can think of that a Judge could rule quickly in a case where the laws are convoluted and unclear is to rule that the law is ambiguous. This would essentially throw the case out of court.

    However from the tone of his statement it looks like he is going to make an honest effort to interpret the law. If so I don't see how a fair and speedy decision is possible.
    • The only way that I can think of that a Judge could rule quickly in a case where the laws are convoluted and unclear is to rule that the law is ambiguous. This would essentially throw the case out of court.

      Not at all - to rule that the law is vague and unclear usually means the Court overturns the law. Laws can be Constitutionally "void for vagueness" esp. when First Amendment values are at stake. In the case of the DMCA, such a decision would be welcome, but seems unlikely.

  • You and I might not like the DMCA, but judicial activism -- where judges take on the legistlative role -- is a far greater threat to our freedom than the DMCA.

    Judicial activism is the term used to define judges acting as lawmakers. In 1803, the U.S. Supreme Court defined its role as accurately defining what the law is. This means that judges act as interpreters of the law, if and when the law, or its application, is confusing. In recent years, judges have left this traditional understanding of judicial review and have begun legislating from the bench.

    Judicial activism violates the balance of powers laid out in the state and federal Constitutions. It takes authority away from the elected legislature, and puts judges in the position of both lawmaker and judge. When this happens, people lose their right to representation.

    A good example of judicial activism is right on the page. In this case, the judge is dictating copyright policy in direct opposition to laws passed by Congress.

    We should fight the DMCA in the halls of Congress, not in the courtroom, as the system of checks and balances must be preserved!

    • Re:Judicial Activism (Score:5, Interesting)

      by giminy ( 94188 ) on Saturday October 05, 2002 @08:14PM (#4395069) Homepage Journal
      Actually the Supreme Court's jobs are really two: 1) interpret current laws wrt some current case, and 2) decide whether a current law is constitutional. If the law is not constitutional, it is revoked by the Supreme Court. So if the Supreme Court sees the DMCA as unconstitutional, they can make it no longer exist, essentially. This *is* the system of checks of balances. This prevents Congress from being retarded and passing a law that, for example, infringes on Freedom of Speech (say, like the DMCA is a good example...)

      You might want to take a better a look at the way the Judicial branch interacts with the legislative....

    • Re:Judicial Activism (Score:4, Insightful)

      by BonThomme ( 239873 ) on Saturday October 05, 2002 @08:23PM (#4395095) Homepage
      I agree that the judicial branch should not be legislating. The real problem, however, is that over the past decade, the legislature basically gave up on law-making. The DMCA is not the only vaguely (i.e. poorly) worded statute to issue from the bowels of Congress. The legislature is quite happy to crank out ambiguous laws under the rubric of "getting things done" and doesn't worry about being called on the carpet by the electorate since they can easily twist the meaning of whatever nonsense became law on their watch (looks at us, we outlawed starving children! woohoo!). The legislature is quite content to leave the heavy lifting to the judiciary since the actual pronouncement of a blank and white judgment tends to get you voted out of office.

      If you want to limit judicial activism, make sure your legislature is passing clear and concise legislation. The judicial responsiblity is to interpret the law. The amount of interpretation they get to do is inversely proportional to the legal precision employed by the legislature.
    • A bit OT, but an interesting bit of insight from legal minds into the world of tech., since you (and everyone else here) is looking at it from the other way around...

      The LSAT is standardized test you take to get into law school. One of the sections of the test is to measure "critical reasoning". I recently took a practice LSAT and came across this question:
      The senate candidate expressed outrage that few judges have any background in technology, yet they try to resolve cases involving high tech companies. He stated that not one federal judge has a degree or any experience in computer technology. A promising response to this concern, arguing that things are not as bad as they might seem, could involve which of the following claims?


      A) Most of the public policy questions in this area are really about the morality and the value of scientific and technological developments. They do not require much technical understanding beyond that of a layperson.

      B) Computer scientists, by and large, have little interest in politics and public policy. It would be difficult to find scientists with the degree of commitment required for a serious contribution to the judicial system.

      C) There is a lack of people who are qualified in both technical and legal areas of expertise.

      D) There is very little opportunity for, and indeed little need for, technical expertise in the judicial branch. There is therefore almost no way for a technical specialist to rise through the ranks to a top-level position in government.

      E) The rewards of a life as a judge, in terms of both money and prestige, are not high enough to attract top-flight technical experts to this area.


      Care to guess the correct answer?

    • Re:Judicial Activism (Score:3, Insightful)

      by jd142 ( 129673 )
      Ah, but there is a sort of balance here. The members of the Supreme Court are appointed by the President, someone elected by the people. Therefore (in theory, and this is all in theory because in practice the Mouse always wins as does whoever has the most money) the Supreme Court is a reflection of the will of the people, because the people's representative appointed the members. And the representatives of the people in the form of Congress voted to permit the President's choice to be a member of the Supreme Court. As aside, that is the main reason I think the representatives have a duty to vote a nominee up or down based on purely political reasons. A senator or representative is a stand in for the people of his or her district; if the people the senator represents are mainly republican, that is good enough to vote against a nomination made by a democrat. That political approval is part of the system of checks and balances. In theory a president can't appoint someone from the far right or the far left, because the nominee must be politically palatable to a majority of the people who approve the nomination.

      But I digress. If the Supreme Court oversteps its bounds by making law, then there are two main checks to that overstep. First, congress can pass a law that fits within the court's holdings but that still accomplishes the same end. Remember, sometimes it isn't the end that the Supreme Court objects to, it is the means. And we should all understand why the ends don't justify the means. The second main check to an overreaching court is an amendment to the constitution. If the Supreme Court says that there is no consitutional right to share music, then get an amendment passed to make sharing music a constitutional right.

      So there are checks and balances, they just aren't the main ones that people learn in civics class.

    • Re:Judicial Activism (Score:4, Insightful)

      by commodoresloat ( 172735 ) on Sunday October 06, 2002 @01:55AM (#4395880)
      Judicial activism is the term used to define judges acting as lawmakers. In 1803, the U.S. Supreme Court defined its role as accurately defining what the law is.

      In 1803 they also articulated the doctrine of judicial review which holds that a statute ruled offensive to the Constitution cannot become law. This is not judicial activism; the judge is not "dictating copyright policy in direct opposition to laws passed by Congress." Rather, the judge is raising significant Constitutional questions about the law as passed by Congress. This is well within the role of the judiciary, and the claim of judicial activism here is either a mistake or a red herring.

  • Hopefully (Score:4, Insightful)

    by mao che minh ( 611166 ) on Saturday October 05, 2002 @08:09PM (#4395054) Journal
    Hopefully decisions like these will help steer progress towards the creation of a clear and fair set of laws concerning intellectual integrity, rights, et cetera. The large companies have all of the money and do all of the whining, so regardless of what form it finally takes (as I have no doubt that much of what is in the DMCA will be changed/over ruled/whatever), there will be some broad DMCA like set of laws that will restrict the way data is distributed and used.

    In other words, the RIAA and MPAA will get a bone thrown their way, but hopefully common sense will win out over greed and we will have a fair and concise set of rules to abide by.

  • Letters (Score:5, Insightful)

    by tsg ( 262138 ) on Saturday October 05, 2002 @08:30PM (#4395115)
    "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal," said RIAA lawyer Cary Sherman.

    "clearly illegal". This from an industry that says not watching commercials on television is stealing and that making a cassette copy of a CD (that I own) for my car is "tolerated but not legal" behavior.

    "If you got a letter from the RIAA saying we know that you're doing this, I'd say there's a good chance that you would stop."

    In other words, they want to be able to threaten people with C&D's regardless of whether they have any proof of wrong-doing.

    Verizon says it would be unfair to cancel users accounts unless the music companies concerned filed formal legal proceedings that would give the users a chance to fight back.

    But the music industry says that would take too long.

    Tough shit. It's called due process and is guaranteed by the Constitution. Deal with it.

    • Re:Letters (Score:5, Funny)

      by daniel2000 ( 247766 ) on Saturday October 05, 2002 @10:02PM (#4395319)
      "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal," said RIAA lawyer Cary Sherman.

      I like the clearly illegal comment which comes directly after saying that people are not aware that it is illegal.
      That sounds like it was clear to me!

      • "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal," said RIAA lawyer Cary Sherman.

        I like the clearly illegal comment which comes directly after saying that people are not aware that it is illegal.


        That sounds like the scientific use of clearly.

        Conclusion to my thesis -- "It is trivial to show that it is clearly obvious that this is not woofly."

    • Re:Letters (Score:2, Informative)

      by anonicon ( 215837 )
      In the spirit of piling on, let's run with this quote: "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal."
      You mean like the very recent price-fixing case the RIAA lost to the tune of $143 million? [usatoday.com] This is their *2nd* price fixing settlement in 2 years, the first one happened in 2000. [ftc.gov]

      Peace.

  • So the Beeb item (Score:3, Funny)

    by Snork Asaurus ( 595692 ) on Saturday October 05, 2002 @08:39PM (#4395130) Journal
    Can be summarized:

    "The judge decided what was already known: The DMCA is unclear. Suddenly, not much happened. Then, nobody made a decision. Finally, nobody knows when somebody will."

    Big frickin' deal. Please go back over yesterday's submissions editors. I gave you something much more interesting to post.

  • POINTLESS LIMERICKS YOU WILL ENJOY YES! (Score:5, Funny)

    by Anonymous Coward on Saturday October 05, 2002 @08:42PM (#4395138)
    There once was an organization,
    known to geeks by its abbreviation,
    that's R-I-double-A,
    they'll take freedom away,
    as soon as Congress gets that "donation"!

    There once was a woman named Rosen,
    trying so hard to get her laws in.
    She's lobbying Congress
    to put an end to Progress,
    but more copying is all that she's causin'.

    There once was a gent named Valenti,
    who sued movie swappers a-plenty.
    But one day he died,
    only his lawyers cried,
    and on Slashdot the cheers were modded +20!

    There once was a Senator named Hollings
    Whose passion for Disney was apalling,
    He accepted their money,
    Called Eisner his "honey",
    And you should see the Mickey-shaped hottub he's installing!
  • RIAA: We want their names so we can mail them and tell them to stop.

    "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal," said RIAA lawyer Cary Sherman.

    Yeah right.

  • This is not about the RIAA or DMCA (Score:5, Insightful)

    by Above ( 100351 ) on Saturday October 05, 2002 @09:15PM (#4395222)
    "We" (whoever that is) need to decide which rights and protections apply to intelectual property. Current laws and judgements dance around the issue, but there is no majority in the argument. I can see arguments for both sides, but err on the side of letting individuals do whatever they want.

    I think the current arguments are all irrevelant. Long term we're going to decide if people can own ideas, and if so for how long. I believe it is in our best interest to make the exclusive period as short as possible, but that's my own opinion.

    As far as I can tell, at the same time one persion has an opinion it's likely several others have the same idea. That is, humanity is evolving at a fairly constant rate. Giving the first person to have the idea a huge advantage seems silly.
    • And then have a referendum that the patent/copyright/trademark system should be removed and replaced with .

      Six months before the referendum, take out a patent on "a process and method for voting NO on proposition 846"

    • "We" (whoever that is) need to decide which rights and protections apply to intelectual property.

      That same "we" need to stop referring to consititutionally granted intellectual rights as "property". That's what's causing this whole mess in the first place.

      As soon as something becomes "property", then it is ownable and the owner has all rights over it's control. Copyright, patents and trademarks are not property. They are rights we, the people, grant through the Constitution and appropriately constitutional laws.

      As long as we allow vested interests to call it property without pulling their pants down in public, they will win the argument. People understand that property owners control their property. We have to make the public aware that these things are NOT property, they are the public commons and belong to all of us. We simply grant temporary, exlusive rights to the creators to motivate them to give us more.

      Once people understand that all this "content" is already legally thiers; That all they have to do is wait for a limited time to get it for free; then the public will demand that such "limited times" be "reasonable".

  • come again? (Score:3, Insightful)

    by Sebby ( 238625 ) on Saturday October 05, 2002 @09:17PM (#4395229)
    From the article:
    "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal," said RIAA lawyer Cary Sherman.


    If it's so clear that it's illegal, wouldn't they already know about it. Or is it just that the RIAA can't admit that it's not giving people what they want.

    As someone else once said, the record industry created Napster by leaving a void for Napster to fill...
    • people are not aware that that they are engaging in conduct which is clearly illegal

      So, they are aware it is illegal but not aware that they are engaging in it.

      Now that's some neat spyware. I have 10Gb of sweet mp3s on my drive and I didn't even know they were there!

  • Finally a judge states the only thing that was clear and unambiguous in this whole story:

    The the DMCA is foggy and ambiguous

    Hope this is a start for the desmise of the worst copyright law ever seen. Sincerly this document is more a resemblence of a medieval mind, much more worried that everyone pays the bridge pass or the tea tax rather than making some profit of a due work.

    Well, if things will go on, hope you Americans will not forget to add one more face to Mount Rushmore. Sincerly, that judge will fully deserve it, if his move starts to dig up the DMCA's grave.
  • unfortunetly I don't have the kind of evidence that I'd like, but I find the trend disturbing that we wait on court decisions to fix these kinds of problems.
    the judicial branch is assuming too much of the resposibility of the legislative branch, in deciding what the laws are. congress are the "law-MAKERS" while judges, lawers et. all should be in the position of applying the law.

    I am happy that in this instance a judge is fighting an unjust law, but this is not a long term solution for democracy. These kinds of laws have to be repealed by the congress. Consider the consequence, the 'chilling' effect of laws that are unjust but never make it to the courts in the first place. In this situation especially we cannot depend on the judicial branch to fix up the mistakes of congress.
    • the judicial branch is assuming too much of the resposibility of the legislative branch, in deciding what the laws are. congress are the "law-MAKERS" while judges, lawers et. all should be in the position of applying the law.

      Sorry, wrong. While it is Congress's job to make laws, it is the judicial branch's job to interpret those laws. The executive branch is charged with applying and enforcing those laws.
    • I think that these discussions about the SC taking on too much, becoming activist, etc. ignore the essential fact that congress is presently elected primarily by the money of special interests such as the members of the RIAA. Congress "persons" are not elected for their intelligence but for their political flexibility. To the funders of a campaign, "political integrity" means the candidate STAYS bought. Consequently, congress worries less than we would like them to about insuring that new law remain in congruence with the constitution and prior law, much less the intent of such instruments.

      The courts have the unenviable task of attempting to reconcile conflicting law. Inevitably, this means that whenever a court decides in favour of one law and against another - this usually means in favour of some interpretation of the constitution - the courts assume the onus of being seen as "activist" by some special interest group.

      When laws address something as nebulous and stupid as idea of "intellectual property," the situation is worsened profoundly. You can validly argue that logically any idea, song, book, or what not, remains "intellectual" property only as long as it exists soley in an originator's mind. Jefferson for instance seems to have thought this way, but reluctantly went along with time-limited patents as a temporary means of supporting inventors until they could move newer "intellectual" property from the idea state to useable products or knowledge. Copyrights have the same kinds of logical problems.

      • The courts have the unenviable task of attempting to reconcile conflicting law. Inevitably, this means that whenever a court decides in favour of one law and against another - this usually means in favour of some interpretation of the constitution - the courts assume the onus of being seen as "activist" by some special interest group.

        Furthermore, and I think more broadly, the Congress isn't doing what the framers intended; ie, bringing interests together to find compromises that actually provide political settlement of divisive issues. The controlling majority passes absolutist laws (or none at all) and the courts are being forced into a position of providing compromises. This fails to work because courts decide up/down/yes/no matters of law, and when they wade into "maybe" situations they are rightly rapped for acting in a legislative manner.

        Abortion is the clearest example I can think of. Polls *consistantly* show Americans favor some kind of right to abortion, especially in cases of rape, incest, threats to the mother's health and so on. But what does congress give us? One side wants to outright ban abortion in all cases, which can never pass, the other side wants it to be perfectly acceptable for 13 year old girls to get abortions without their parents knowledge.

        Neither side can win because neither side is willing to compromise primarily because both sides are driven by special interests not majority interest or compromise interest. It is no more political folly for a Republican to back reasonable aspects of abortion on demand than it is for a Democrat to oppose reasonable restrictions on abortion.

        Until special interests' stranglehold on the political process is eliminated we'll be forced to continue going to the courts to find the compromise, and continue to be unsatisfied about it.

        What's kind of funny in a sad, get-drunk-and-cry about it way is that our political process is no different than our business environment; those involved aren't satisfied with *leading* the field, they feel the need to *own* the field. It's not enough to have 95% of the desktop market, you have to have *all* of it and will tolerate NO competition, even if that competition services niche markets you can't. It's not enough that your view prevails over 90% of an issue, you have to have ABSOLUTE control over it.
        • What's kind of funny in a sad, get-drunk-and-cry about it way is that our political process is no different than our business environment; those involved aren't satisfied with *leading* the field, they feel the need to *own* the field. It's not enough to have 95% of the desktop market, you have to have *all* of it and will tolerate NO competition, even if that competition services niche markets you can't. It's not enough that your view prevails over 90% of an issue, you have to have ABSOLUTE control over it.

          I agree with this completely - the rest of the post as well. My own issue, that I just want to reiterate is that the courts, and the Supremes in particular are saddled with a task that goes far beyond the original job description. Nor do they have the choice of declining the matter since the Constitution exists far more to protect individual rights than it does to enforce majority tastes. Yet many of these new "absolutist" laws you mention are in conflict with both earlier law and the Constitution which must override in any conflict with newer legislation.

  • News for Felons. Stuff that's illegal. (Score:3, Funny)

    by Anonymous Coward on Saturday October 05, 2002 @09:43PM (#4395265)
    Face the truth, you nerds will never stop the DMCA. Not only is it 100% constitutional, it is also a very good and well crafted law... and it's here to stay. You DMCA violators out there are destroying the economy and America itself with your hacking and online thuggery.

    You folks are as bad as those gun crazies who think they should be allowed to own guns. Bzzt! Nope, sorry, only the government needs guns. Anyone else who has them is a criminal. The same goes for your hacking tools and your "p2p" or as I like to call it, Pirate to Pirate.

  • Time Change? (Score:3, Funny)

    by medscaper ( 238068 ) on Saturday October 05, 2002 @10:40PM (#4395424) Homepage
    From the article : "But new peer-to-peer systems like Napster have meant..."

    I guess it must be the time change from here to BBC-world, right?

  • So... (Score:3, Funny)

    by FyRE666 ( 263011 ) on Sunday October 06, 2002 @12:40AM (#4395691) Homepage
    Are corporations also allowed to "sponsor" judges in the US? Seems that might be a quicker way for the RIAA to help clear things up...

  • the third way (Score:2, Interesting)

    by Anonymous Coward
    the riaa CLAIMS they just want the name so they can send a letter because most people stop when they get a letter. Verizon doesn't want to breach subscriber privacy. So how about Verizon act as a conduit? The RIAA gives Verizon a letter which they then pass on to their customer. Their privacy is preserved but they are warned they are being watched. Everyone wins!
    • Everybody wins except for the little guy. Don't give VZ any ideas. They're evil enough as it is. Be happy that for once, they are doing the right thing, even if it is for thier own selfish reasons. Like it or not, the only effective way to fight a 500 lb. gorilla is with a 800 lb. gorilla. Let them fight it out; it keeps their respect squadrons of attack lawyers busy trying to screw each other over instead of trying to screw you over.
    • The problem with this 'solution' is simple to explain. A cease & desist letter is a prelude to a lawsuit. RIAA must know whom they are threatening with litigation in order for the threat to be meaningful.

      Either that, or they have to file suit against "John Doe" AND Verizon in order to get subpoena power to discover the identity of their target, but Verizon, by 'cooperating' as a conduit for the cease and desist letter, has gained immunity from suit by the very terms of the DMCA.

      The judge is right. It is a badly-crafted law. I'm not sure whether it is, in fact, vague and over-broad enough to be unconstitutional for that reason alone, but there are plenty of other reasons I consider it (and the new Berman bill) to be unconstitutional and, frankly, just plain BAD public policy.

      I support the concept of intellectual property. I think American culture and industry would not have developed as it has without the protections afforded by patents and copyrights. That being said, patents and copyrights arise because of a SOCIAL CONTRACT which, in essence says, "you make the fruits of your creativity available to the general public and you will enjoy a marketplace free from competition for a period of time sufficient to compensate you for your work."

      Congress, acting at the behest of the RIAA/MPAA seems to be tilting the terms of the contract in the direction of "you allow us to have access to the product of your work and you will own your ideas FOREVER." Since almost every new creation is, to some extent, founded on prior creations, eventually all ideas, plot devices, story lines, melodies and scientific concepts wind up being owned and there is no pool of prior art remaining from which to draw.

      The public domain is the fountain from which all creativity flows. The destruction of the public domain is the evil inherent in the current trend in intellectual property law. The MPAA/RIAA demonstrate their collective corporate stupidity by failing to realize that they are eating their seed corn.

  • wow (Score:4, Insightful)

    by Raven42rac ( 448205 ) on Sunday October 06, 2002 @01:29AM (#4395808)
    how surprisingly refreshing to see a judge doing his damn job, rather than caving to the political winds of whatever the current administration advocates
  • DMCA was a very big bill, dealing with many things wholly unrelated to DeCSS (including sui generis IP protection for molded boat hulls), and with some excellent and valuable provisions as well. Most of us are more familiar with the DMCA anticircumvention provisions, and associate that with its great evils. Also relevant are the notice and takedown provisions.

    This case, and hence the Judge's comments, deals with neither. It address the specific provisions governing when and under what circumstances an ISP may be required to provide information responsive to a subpoena.

    Not a defense of the bill or the Congress -- I just saw enough comments indicating a general misunderstanding of to what the judge was referring to think that these comments might be helpful.

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