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The Courts Government News

Maryland Task Force Proposes Special Tech Courts 139

Posted by timothy from the yes-but-is-the-OS-*integrated*-with-the-crab? dept.
rkent writes: "In this NYTimes article, Microsoft makes a good point, the wrong way. They argue that their case was 'so technical and esoteric' that Judge Jackson couldn't understand it. However, the Business and Technology Division Task Force in Maryland is examining the viability of setting up special courts for tech cases. Which may or may not have helped Microsoft. But would it have helped 2600? And future Internet 'pirates?'"

Setting up special 'techno-courts' has the glossy sheen of futurism and hipness, but if the proposed high-tech courts are specialized by the content of their trials, what's to stop them from becoming self-perpetuating, invasive, and self-aggrandizing bodies within their particular fields of purported expertise, and using that expertise as a means of blocking criticism? Would such special courts be an improvement over better educating the existing judiciary?
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Maryland Task Force Proposes Special Tech Courts More

Maryland Task Force Proposes Special Tech Courts

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  • Re:What an incredibly bad idea (Score:5)

    by MillMan ( 85400 ) on Wednesday September 13, 2000 @03:02AM (#783341)
    After all, we've seen on /. a thousand times how disillusioned the technically skilled population is with many, many aspects of the law. Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests. Are these the people you want as judges in cases like 2600?

    You mean people who understand the needs of the common person and not just those with money? Sounds good to me. But your scenario would never happen, they aren't go to hire the average slashdot reader to be a judge. These people will have to have law degrees and experience, just like any other judge.

    It also smacks of elitism that certain cases should only be allowed to be judged by an elite cabal of "tech judges". Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

    Because there is no such thing as being impartial. If there was, supreme court judges would all rule in the same direction. Your biases and experiences affect how you think. On top of that, the complete ingnorance displayed by some judges in this area *is* a problem. Having to think in terms of analogies isn't good, as it seemed judge Jackson did.

    Sorry, but this wouldn't solve any problems - no judge could keep up with all of the advances in the various fields of computing unless they worked in them. And if they did, you could never be sure that they were unbiased. I say we keep this elitism out of the judicial system, and stick with what we know works.

    I think it might help a bit, but I worry about something different than you: that the judges chosen would be "corporate whores" worse than any that are already out there. The effectiveness of a seperate court like this depends completely on the judges chosen.

    Tech companies tend to think that it's ok to get around regulations and often they do. This is because tech companies bring in high paying jobs to the community, and can get away with more than the average company. I'm afriad that in this case microsoft is just saying something like "we want a judge who will side with us, because we know we're right because we are". There is no reason to believe other tech companies would be different.
  • Oh yeh, and for all the people determined to slander Judge Kaplan -- give me just one example of a technical mistake made in his judgement.

    "CSS, or Content Scramble System, is an access control and copy prevention [sic] system"

    Of course, CSS no more prevents a DVD from being copied than Pig Latin prevents a text from being photocopied.

    My fact-checking fee is $30/hour. You owe me fifty cents (and if you hadn't been too lazy to provide a link to the decision [2600.com], you'd only owe me a quarter).
    /.

  • 3) Very very commonly, cases involving sciences use an expert witness, generally a scientist or engineer that is unrelated to the case but an expert in the field. I would think a similar system would work for computer experts, however, there is something of an informal fraternity of geekdome throughout this area, so that finding a computer expert that was imparital to the deCSS case would probably be very difficult. But I don't see why this can't be attempted at least.

    Ah, but that already occurs. There were several expert witnesses in the Microsoft case. Some testified for MSFT, some against.

    In any case where the plaintiff or defendant feels the court (judge and/or jury) may need knowledge above and beyond what one might expect they'll call in expert witnesses. And if one side does it the other side will call an expert witness to contradict them.

    Expert witnesses are not impartial. They are hired by the plaintiff or defendant to testify. Not all experts in any field have the same opinion -- I'm sure you could find many who felt the DeCSS verdict was correct. And to be cynical about it, if you wave around enough money, fame, or influence you'll eventually find an "expert" who is willing to testify whatever way you want them to. Just go look at the OJ Simpson case as an example...
    --

  • Even though it comes from a company that many people here really don't like (don't knock it because of that), any move that would put someone who really knows what they are talking about "tech" wise would be a good thing(tm) in my mind. However it remains to be seen if the US. gov. can do it right.

  • Indeed, but currently most judges have no knowledge of the various fields of computing whatsoever. How can you expect somebody who doesn't know anything about technology to effect an honest trial in a technology-based case?

    Playing devil's advocate here for a second, I would expect judge's to seek out help, just as Judge Jackson did by appointing a Special Master (did I get that title right?), or listen to the experts (in the legal sense) that both sides bring to a trial (that is, after all, why the "expert" is enshrined in law and given special leeway in the court to inject their opinion into a legal proceeding). If you read legal opinions from judges presiding over trials with experts, you generally see them address the comments and opinions of the experts, and why they accept or reject those opinions.

    Secondly, even a technology aware judge is not going to have the requisite knowledge in all areas of "technology". I would not want to see an expert in database technology designing tires (to pick a random, in the news kind of point), for example, because they require totally separate sets of understanding. Should the same extend to these technology judges, or would you consider all technology cases equally under the jurisdiction of the technology courts?

    Besides, practice of the law is not so much different in the skills needed than is practice of most technical professions: the ability to absorb large quantities of data, analyse those data logically within a certain prescribed framework, and render decisions on that data in view of past experience and current data. Just because the prescribed framework is a set of laws and precedents and not an instruction set and memory architecture doesn't, to me anyway, seem to make much difference in the end.

  • Would that put all of the "smartest" judges in one court and the rest in another.

    That's an interesting idea. We'd have lawyers for each side arguing over whether to take the case to Smart Court or Not So Smart Court. And frivolous lawsuits could be weeded out by judging against those who thied to get their case tried in Not So Smart Court.
    ___

  • Absolutely a horrible idea. Do you want judges (any 'one' person) who presides over _MANY_ cases to be able to 'influence' the overall direction of MANY cases? Sounds like a system that will be even MORE abused than it is presently. Judges can become part of the status quo and are as much a part of the 'establishment' as anyone. That system is terribly easy to corrupt. What is necessary INSTEAD is a system where a JURY of competent Tech people preside over these cases. They are transient (cannot change the general nature or direction of Case Law) and are MUCH less corruptible (can be sequestered). They preside on the facts at hand. Once. Have little chance of being a homogenous group of any type, and can be decided in the usual Jury Selection System.

    Lets NOT encourage further entrenchment of this un-holy domination of Western Civilization that Lawyers have over everything. Let them organize the courts, nothing more. But lets make CITIZENS make the rulings. What a horrible idea.

    Would you Yankees stand up for yourselves? Your being overrun by corporatists and lawyers(politicians), and their using your military to overrun the rest of us. Do yourselves a favour:
  • "I'd love to be a fly on the wall while the interns are sorting all that material.... "

    You and me both. With the hopes that the interns are clued in, and that the "ornery bunch" uses it's oppportunity to whap Mister(s) Bill and Ballmer up side the head with a definition of the law which they can undertand, AKA "break it up, boys..."

  • It seems to me that the best way to mitigate these idiot court rulings is to ensure that the jurors selected have a clue about tech issues. I daresay that a jury packed with technically literate engineers would have a much easier time distinguishing the truth from the bombast in, for example, patent cases.

    In any case, I'd feel much better with an intelligent, educated jury sitting than a bunch of randoms who were, "too stupid to get out of jury duty" (an aphorism I find rather shortsighted and offensive).

    Schwab

  • What we have here is a prime example of some depressed hayseed jurisdiction trying to become an "e-commerce" centre to provide a substitute for dope growing, by futzing about with legal principles.

    Nothing like starting a message with flamebait!

    Home truth time, boys: technical questions are not difficult.

    I agree

    Read Kaplan's summary of the technical issues in the DeCSS trial (I said read it, not skim a slashdot article about it).

    I read the entire transcripts, the entire opinion, and the order. But, it is a bad example to prove your point since the case turns more on legal issues like copyright law than technical issues. The technical issues are not very complicated.

    A trained legal brain can master any subject in its salient details.

    And a trained technical brain can master any subject in its salient details. The law isn't any more complicated than technical issues.

    Two Examples:

    The Open DVD [harvard.edu] shows that non-lawyers can grasp the intricacies of legal concepts of copyright law.

    Second, is the fact that I was involved in a pro se case. That case went to the Maryland Court of Special Appeals (we won the appeal) and also had a motion ruled in our favor that depended on the whether collateral estoppal applied to the case. The opposing lawyer was from Maryland's Attorney General Office.

    Lawyers are the highest paid employees in the country

    Money == Brains ???

    Of course, the fact that your profession has a government enforced monopoly doesn't hurt your income.

  • Justice must be seen to be done (Score:3)

    by SimonK ( 7722 ) on Wednesday September 13, 2000 @03:07AM (#783351)
    I do believe this is a bad idea. Its a principle of common law, enshrined in the US constitution, that justice must not only be done but be seen to be done. Having a separate system of courts that deal in things that are supposedly too hard for ordinary (read: stupid) people to understand is not going to help that goal. The implicit statement is that only supersmart people who speak techiegook are competent to judge these cases, and only similarly rarefied souls are competent to testify in them.

    The likely consequence would be that ordinary folk would be reluctant to bring cases to these courts for fear of being made to look foolish. You'd end up with a hoard of especially expensive technolawyers, mostly in the pay of big corporations, who'd be the only people who could afford them. This would be a recipe for more and more pro-corporate decisions.

    I know there's a certain attraction to this idea. The concept of a discrete court system that "spoke our language" seems attractive, but I don't think it would be like that at all. You'd end up with great tottering piles of incomprehensible precedent couched in a combination of techspeak and lawyerese that would effectively make the whole thing a disaster for anyone but the lawyers working it.

    I'm not saying the courts don't need technical advice, and I'm not saying the existing system, where different technical witnesses slag each other off in court works well, but the answer is not to set up a new court system with even higher barriers to entry than the existing one. I quite liked the way the "silicon implants cause cancer" case was handled, where the judge appointed an expert panel that questioned the two sides expert witnesses and then gave an evaluation of the evidence in terms "the court" (ie. judges and jurors) could understand.
  • There's other areas that are just as specific.
    Heck financial law and bearking it is a complete nightmare to follow. There have been many many tax cases in the UK that have literally cost millions and resulted in no-conviction because the details are so complex and proofing wrong doing is almost impossible.

    If they are going to go for tech courts then do the job properly and have others for medical, financial and other areas.
  • with law and tech is that they are both too large for one person to handle the total extent of. What I mean is, you can be a great judge or you can be a great techy. Understanding the scope of technology is going to take a shift in the general knowledge of the entire populus. If the general guy doesn't know that not being able to play DVDs under Linux is a huge precident being sent, how can we expect the average judge to know any better. The judge in this case knew that he was dealing with something large but didn't really know how to handle it. Nothing like this has been done before. If we develope a group of techno-judges why would they be able to handle the implications any better. We need to keep the judges doing the law and the geeks doing what ever it is we do and have some kind of technical expert. After all judges don't know DNA testing why should we expect them to uderstand packet switched networks.
  • I'd rather skip 'expert witnesses' & instead ahve an advisor for the judge or jury who is an expert on areas they may not know anything about...
  • He's not a lawyer. He's just a ****ing troll. Don't rise to it.
  • CSS is, in fact, a copy prevention system. CSS consists of two parts; the encryption system for the DVD data, and the session keys used to identify the DVD player. A bit-for-bit copy of a CSS-scrambled DVD is useless, as it is impossible to copy the session key tracks without specialised equipment. All this evidence is available in the depositions made to the trial.

    My fees are somewhat higher; you owe me $2,000 (sadly, my timesheet does not allow me to bill for increments of less than 1 hour. If you have any further legal questions, please feel free to ask them for the next 58 minutes.

  • You will get judges who know COBOL.
  • I don't see the need for a whole new court system, the existing one would work just fine if the judges involved where less biased, and better informed. It does not take a computer genuis to read over a technical outline about a subject, only the ability to follow and understand an unbiased brief.

    Also getting rid of the god damn lawyers who prob people into all these damn useless law suits (King comes to mind), and a little more backround screening of the judges involved in cases (for example I believe Kaplin has presided over a/few previous cases and sided with the corperate industry).

    Jason ... my 2c worth
  • ok, if we want to turn to technology, why not write the Legal Expert AI? this (largish) bit of code needs to analyze case histories and recognize patterns well enough to be able to synthesize prescriptive remedies. if good enough, we could elect it president...

  • Thats a job I could handle. For gods sakes, if i wanted to, i can write articles that would make Katz cringe...and maybe even make a vaild point or two in the process.

  • Isn't that a Tom Clancy book? And didn't Tom himself say that the only difference between reality and fiction is that fiction had too make sense? This is too good an idea. It will never happen.
  • The reasonableness or otherwise of the CSS copy protection [sic] scheme is not relevant to the question of whether it is a copy protection scheme; and in any case, the issue has been decided in court

    And so the circle is completed: the courts system is correct in calling the CSS access control system a copy protection scheme because the courts have ruled to that effect.
    /.

  • What an incredibly bad idea (Score:4)

    by flatpack ( 212454 ) on Wednesday September 13, 2000 @02:15AM (#783363)

    After all, we've seen on /. a thousand times how disillusioned the technically skilled population is with many, many aspects of the law. Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests. Are these the people you want as judges in cases like 2600?

    It also smacks of elitism that certain cases should only be allowed to be judged by an elite cabal of "tech judges". Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

    Sorry, but this wouldn't solve any problems - no judge could keep up with all of the advances in the various fields of computing unless they worked in them. And if they did, you could never be sure that they were unbiased. I say we keep this elitism out of the judicial system, and stick with what we know works.

  • It is not possible to "Physically copy" the key tracks without licensing a special piece of equipment

    It is not possible to copy any of the tracks without a special piece of equipment.
    /.

  • hmm (Score:3)

    by acehole ( 174372 ) on Wednesday September 13, 2000 @02:16AM (#783365) Homepage
    who gets to be the judge?

    how about linus?

    If i was gonna get 40 lashes in a public square for using napster i'd rather have the ruling made by someone i can respect ;)
  • and no i dont have a fetish about linus holding a whip ;p
  • We've decided that the extremely technical aspect of DNA evidence is comprehensible by the general public, why not other tech?

    Elitism. High-tech companies think that they'll get a fairer shake since the tech courts will be full of pro-tech people.

  • From reading the transcripts of the DeCSS and Napster cases, I really think the real problem is the judges. I'm not sure how a "tech court" is supposed to help when you have a dingbat like Marilyn Pattel before the bench.

    I have no doubt that if the DeCSS or the Napster case had a different judge behind the bench, the outcome would've been different. It's a sad state of the 'merkin legal system where the outcome often has absolutely nothing to do with the facts of the cases, but it more has to do with which judge sits behind the bench.

    ---

  • i want to be such tech-judge.

    i'm expert in every IT field, i have little knowledge about law, i'm (maybe) pretty average MS hater (as almost everybody who saw PC at least once in his life) and linux supporter (as almost everyone who saw Linux at least once in his life) so i'm certain i will rule reasonably and fair in every case - especialy in "MS vs. DOJ" case.

    :>
  • Two things to consider:

    1. IT'S JUST ONE STATE
    And not even a state known for widespread technological development. California has a strong tech industry. Seattle has Redmond. New York is developing its own 'Silicon Alley.'

    What is Maryland known for? Seafood and speeding tickets!! And while Maryland has a little tech industry, it's not California, or Seattle, or New York. Or better/worse yet, the Federal Government.

    This is why it's ineffectual. And probably a good thing too because...

    2. IT'S THE WRONG SOLUTION FOR THE PROBLEM

    Consider the role of the courts in government: the legislative branch writes the laws, the executive branch ratifies them and sets policy, and the judicial branch only interprets and enforces them where necessary (and allegedly strikes down the bad ones).

    Ladies, gentlemen, and /.ers, the problem is not just in the Judiciary. Even Judge Patel admitted that the DMCA has created a monumental legal snafu. A snafu which, I should point out, began in the Legislative branch where the laws were first written.

    Creating a technically knowledgeable division in the Judicial branch is like writing an improved script to interpret the output of a program written which implements outdated (and sometimes downright wrong) algorithms.

    And even if this gets to the Federal level, remember that the judges are appointed by the Executive branch, with the approval of the Legislative branch. They have always had the ability to stack the Judiciary with whatever judges they want, and have done so for the past few decades.

    There is a hope in here, that a sufficiently technically knowledgeable judiciary would declare more laws unconstitutional, but there is an equally compelling dread that a panel of judges sufficiently friendly to the Congress wouldn't bother. After all, the Bill of Rights is already a shadow of its former self, if not an impediment to better paid-for government and corporate rights.
  • do you take monopoly money?

    I have on occasion worked for Intel; what on earth does that have to do with anything?

  • Hmph (Score:3)

    by Urmane ( 2213 ) on Wednesday September 13, 2000 @03:33AM (#783372) Homepage
    "They argue that their case was 'so technical and esoteric' that Judge Jackson couldn't understand" ... that they "did nothing illegal"? Pardon me, but does anybody in The Real World see that MS is just a bunch of whiners? I mean, really, I know the rule about "deny, deny, deny", but I think there's a corollary that states "try not to sound like an eighth grader while doing it".

    Personally, I'm appalled at the thought of setting up "special courts" for anything. I'm also appalled at the thought that this might be a direct result of the govt's challenge of MS. I literally would not expect the citizenry to be able to tell the difference between the Tech Court and MS Justice 1.0, and I shudder to think of what precedents might be set by such a court. Come on, think, people; why do you think the courts are set up the way they are? Yes, there needs to be a solution to the problem of judges and lawyers who do not understand high-tech, but this ain't it.

    --

  • The problem is that the people we have in office now simply do not grasp technology, or grasp it and fear it. The solution is not to create special courts full of cluefulls, it is to replace the dying dinosaurs who are sucking up our tax dollars right now with people who are actually relevant to the world around them.
  • Too many cases regarding technology, computing, and the Net are being resolved by judges who literally have never seen a C: prompt or a Mac Finder screen.

    However, the MS antitrust case isn't one of them. It appears that Judge Jackson did get the issues at stake and ran through them from A to Z in his court decision.

    How many of you whining about that EVIL, NASTY judge DARING to "stop MicroShit from innovating" have bothered to read it?

    Try here [microtimes.com] for excerpts and the URL of the decision itself.

    If a special technical issues court is put together, Judge Jackson and the Federal judges who wrote the anti-CDA decision should be on it.

  • Isn't Maryland one of the UCITA states? If so don't know that I would trust any decision that they came to. They would, in my mind, be presumed conflicted until proven otherwise. OTOH, the absurd length of that stupid law might make it mandatory to have a specialist to have a fighting chance of figuring out what it meant.
  • Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests

    Peaceful civil disobediance is a perfectly legitimate form of protest. "Flouting the law", as you put it, is just an extended version of peaceful civil disobediance. It tends to work too, I mean, most police officers tend to have a hard time arresting you if your sat there, not doing anything to harm anyone and breaking the law. From there on, reform is almost inevitable...

    Nick
  • Kaner and Pels, in their crusade against UCITA, combined with some articles from Infoworld's 'gripe line' describe how most political consutltants on software matters also work for the industry in their off hours. Just a few months back, one of the primary authors of UCITA was shown to have worked for microsoft. It was judged that it would be unreasonable to expect tech lawyers not to work for companies since doing so would prevent them from earning a living.

    I admit that this idea is idealistic, since our adversarial justice system would require that a group of easily accessible lawyers remain on the public payroll to represent the state in cases against corporations, America's governing body would have a ready pool of skilled consultants who would be free of the conflicts of interest that private industry might impose.

    Of course, unless this idea is somehow institutionalized I doubt that it would be used.

  • A correction to the above. It should read "it would be unreasonable to expect tech lawyers who work as governement consultants not to work for companies in their off hours"
  • to the point that those who consider themselves threatened would want to drop the M.D. Device on where it lives, even though the people there already have a solution for the problem.

    parallels are a bitch.

    --Perianwyr Stormcrow
  • I find it rather strange that Microsoft should be backing this, considering that their case was really rather non-technical. It was more about business practices than actual technical minutæ.

    That's exactly why MS would be backing this. They were hosed from a business practices point of view, as the verdict ultimately showed, so they muddy the water by claiming that the "real" issues are too difficult for a layman to understand.
  • That special piece of equipment that you speak of is just a DVD player without the funny protection key electronics.

    It is a physically simpler device. It is not inherent more special than the licensed DVD player itself.

  • But they're all equally arbitrary divisions. It's not like traffic laws are based on English common law, rent codes on Napoleonic, and civil cases on the UCMJ. They're simply specialties within the law, and I'm sure in most small towns they're handled by the same people in the same room.

    I'm sure that by now there lawyers who specialize in "technology" issues, by which I imagine they would mean computers, telcomm, and electronics, just as there are malpractice attorneys. Certainly many law enforcement agencies have felt it necessary to spin off seperate units to handle these cases. It therefore might not laughable to allow judges to specialize as well.

    It doesn't mean that each judge needs a CS degree, any more than the judges in Orphans Court need to be orphans. It does mean that they might develop a working knowledge of the field.

    There's a post somewhere in this page (I think up from here) purporting to be from an attorney, commenting that tech issues are simple compared to law, and in some ways he's right (although I have to ask -- anybody out there doing IT for a law firm? Do your lawyers generally know where the power button is?). But that doesn't mean that any given attorney knows what issues to study, and you can't bone up on an issue of which you are unaware.What's your favorite intelligent-and-well-meaning-but-ignorant-user story?

    Put it this way: If you walked into traffic court and found that the judge had never driven a car, might that bother you? Might it make it a little hard to explain what you meant about the blind spot of a truck? What if he didn't realize that left turns are different from right turns because of oncoming traffic? Are you certain that you would think to explain it to him?

  • ...how about judges that specialize in the Law?!
    Next thing you know, we'll need to set up specialized courts for Medical cases, another set for Automobile cases, another for Property...
    Where does it end? Courts have always relied on 'expert' testimony...do we gain anything by changing that now?

  • Bad, but the state courts are bad (Score:3)

    by FallLine ( 12211 ) on Wednesday September 13, 2000 @03:37AM (#783384)
    Well I agree that having special "tech" judges is mostly unnecessary, and probably even unwise. I don't believe a "technical" judge for one is really going to be able to educate himself sufficiently in the state of every art. I think all it really requires is a fairly intelligent and unbiased judge that is willing to listen. Even though Jackson conceded he was not an expect by any means, I think Jackson's assesment of the MS case was right on the money.

    Unfortunately, however, most states have really horrible courts when it comes to issues like business law. It's so bad, in fact, that many corporations have chosen to incorporate in Delaware [widely regarded as having the best], for issues beyond just tax laws. Delaware, unlike most, has adopted a certain expediency and fairness and predictability. Delaware Supreme Court had done an excellent job of monitoring the lower courts, and effectively regulating them to keep abusive lawsuits out.

    We don't need "special" tech judges [if anything, business law is more demanding], we just need decent and competent judges in the state courts that are well regulated. To this end promoting judges based on merit, rather than requiring them to run for election, would make for a better system.

  • Re:What an incredibly bad idea (Score:3)

    by Chakotay ( 3529 ) <a.arendsenNO@SPAMgmail.com> on Wednesday September 13, 2000 @03:38AM (#783385) Homepage
    Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

    That indeed is very true... You can hardly expect a tech judge to be impartial to the Microsoft trial. They'll either love or hate Microsoft, which will affect their decision.

    no judge could keep up with all of the advances in the various fields of computing unless they worked in them.

    Indeed, but currently most judges have no knowledge of the various fields of computing whatsoever. How can you expect somebody who doesn't know anything about technology to effect an honest trial in a technology-based case? How can you expect a mostly a-technical jury (because, face it, most people are) to make an impartial and well informed decision about a technical case?

    I don't think there's a need for a special technical court. A team of technically knowledgeable advisors to courts would be a much better idea, imho...

    )O(
    Never underestimate the power of stupidity
  • ...a new legal system, not new courts to interpret the woefully inadequate old one.

  • I see many people have come out saying the Judges involved in these cases just need to be more informed. Well, it doesn't work like that. Judges aren't going to hold the case until they've taken a few classes on the subject and met with every expert they can get ahold of. So, as in many issues of speciality -- such as financial law, family law, and criminal law -- special courts are set up where the judges in these courts have experience and knowledge pertaining to the speciality.

    Now, while I support this move, and recognize it is just in one state at the moment, these judges can only administer the law. If a law states anyone wearing blue must be hung upside down for four hours and the judge hears a case that provide convincing evidence someone was wearing blue...the judge has to administer that law, no matter how stupid it is. Thus we are back to legislaters. This is a good thing as we have a direct way of communicating with congressional reps, unlike judges that rarely can be successfully lobbied.

    It is important that you write and call your legislator and discuss your concerns over the tech laws that are being passed. It is even more effective if you state you work in the field or are in some way significantly connected to the industry. Offer to meet with him/her when she is in town to discuss upcoming bills. The /. community is filled with very bright, articulate people who have a good chance of at least enlightening a congressional rep to the downsides of certain bills.

    The 'Do this or I won't vote for you' tactic rarely works because the rep will think you will make this demand of every issue that comes up and thus won't really be able to get your vote anyway. But the 'I want to work with you' approach goes a very long way.

    In conclusion, yes, let's have Tech Courts at least until these issues get more mainstream and more judges have experience at looking at these sorts of cases. Don't expect the courts to rule any differently though because at the foundation, the laws governing the Tech Sector are flawed and only getting these laws change will fix these sad court decisions.

  • What about lawsuits about automobile or airlines. Or a bridge that failed? Or breast implants? Or manufacturing illicit drugs.

    Many cases are complicated. It think it's pompous to presume that [computer] technolgy cases are more complicated than any others.

    --- Speaking only for myself,

  • Anyone who read the transcripts of the 2600 case would agree that this judge did "get it". During the case the people in the court room even commented on the judge's computer efficiency. The judge understood most of the expert witness testimony before the prosecution did. A number of times the prosecution started asking questions to clarify to the judge what was said by the expert and the judge shut them down and just asked the expert if he had understood him right, and he had! I don't think we give judges enough credit.
  • Good point, which I have thought about many times since then, but according to a lawyer who I asked about it later, I did the right thing.

    An example: if a doctor were on a jury, and the "facts" presented by the prosecution / plaintiff's attorney could not in reality be correct, and the defense didn't rebut the specific so-called facts, should the rest of the jury be kept in the dark about why the "presentation" isn't truthful? This is the exact reason that attorney's usually seek to qualify or disqualify jurors that they think will aid or hinder their side of the presentation when the jury goes to deliberate. Off topic perhaps but related, alot of legal pundits point to the choices made by the prosecuting attorneys in selecting the respective juries as one of the key reasons that O.J. Simpson walked out of his criminal trial a free man, but got nailed to the wall in the civil trial.

    One final point. Lawyer's aren't supposed to be able to rebut/object/etc. to what goes on in the jury room. The discussion in the jury room is unmonitored, unfiltered, and unrecorded, and therefore (at least in theory), more able to come to an objective and fair decision about "the truth", leading to a legal decision based on that truth, AKA the verdict.

  • Oooh oooh, me too.

    Although really, my entire strategy would consist of yelling at people on the stand "may I remind you you're under oath".

    They look so guilty when you do that.

    I don't see what the big deal is. Traffic court, tech court. Blah. Don't american's have judge wapners animal court?

  • Erm, the session key tracks are represented by bits. You can make bitwise copies of the session tracks.

  • Don't american's have judge wapners animal court?

    I'm not sure, I usually try to avoid watching tv because of crap like that, but i think we do (as scary as that is).

    Seriously though, I love technology, but I'm not a graphic artist, and definatly not a programmer, so aside from doing hardware maintance, theres not a lot I could really do as a job. However with all the IP lawsuits (not tech, but still something I would like to see changed) and the tech lawsuits themselves, I really think its something I could get into

    Now if only I could handle speaking in front of people a bit better so I wasn't just doing the paperwork for a client......

    Mr. Gates, shut the hell up, your out of order!

  • A point many people miss is the different standards of proof in criminal vs. civil courts.

    To be convicted in criminal court, the jury must believe the case proven ``beyond a reasonable doubt''. If you can reasonably question the prosecution's case, you must vote to acquit.

    On the other hand, in civil court the standard is simply ``the proponderance of the evidence''---if the plaintiff (not prosecution: two different things) has better evidence, a more convincing case, than the defendant, then vote to award damages.

    In other words, in criminal court, it's gotta be, say, 98% proven, while in civil court it's 50% plus epsilon. Thus, it's perfectly reasonable for the two OJ trials to both have come to correct conclusions.

  • No, you can use a bit-for-bit copy if you can find some way of generating the session keys. The scrambling of the content, plus the inaccessibility of the session keys, together, go to make up CSS.

    I don't think you could "easily" emulate the DVD session keys just by "writing a driver". Unless you have a specialised piece of equipment, or unless you can steal them by hacking a DVD-player (this, btw, would also count as "circumventing a copy protection device" under the DMCA). What kind of technique do you have in mind? (BTW, feel free; general discussion of techniques, as opposed to the creation of tools, is very definitely protected speech for which the strict test applies.)

  • Oh, streetlawyer, do you really think you can pass that by a techie?

    ... it is impossible to copy the session key tracks without specialised equipment.
    That's very clever phrasing. Now what is entailed in COPYING? One must read the session key tracks, and be able to write them!

    Why is copying difficult? Becuase the DVD hardware reads the key (it must do this, or decoding cannot proceed), but does not pass it out to software control. If the software controlling the DVD player could obtain the session key there is no problem with writing it out!

    In other words, that is how a licensed player must operate. Who specified this behaviour? The DVDCCA. There - the evidence for player lock-in, and anticompetitive behaviour is out now.

    How specialized is this equipment to read this session key? Not more specialized by far. You just need to get rid of that chip is that not passing on the session keys, and substitute it for one that passes the entire raw DVD sectors on. It would be trivial to reverse engineer the hardware to figure out which piece of electronics is disrupting the hardware stream. It seems that some piracy cartels in HongKong have figured this out and are pressing DVDs in masses.

    Some techies are not dumb too.

  • Seems to me that, despite all the chatter about how the Internet is "changing the world", fundamental principles (freedom of speech, etc) still apply. The judicial system isn't perfect in any country, but I can't possibly see how this would help.

    Simply put, it takes time for the judiciary to catch up to any new concept. Look how long it took the civil rights movement to win in the US courts. Whatever the problems still may be, racial discrimination is no longer a socially acceptable norm. That was a far more important concept, and it took time.

    It will be the same here: despite the beyond-reasonable cynicism of many geeks, in time, the courts will eventually get things more-or-less right. Nothing will ever be perfect, granted, but let's not assume that everyone except technically qualified people are incompetent to have enough of an understanding of technology to be able to apply the legal principles upon which our society is based to it. And let's please not assume that there's any link between technical competence and ethical standards.

  • Are these the people you want as judges in cases like 2600?

    I am fairly sure that you'll need a law degree and a substantial amount of actual experience of practicing law in order to become a judge, "tech" or no. So, rest easy -- Katz is not going to sit in judgement on you.

    Why should a case which involves technical concepts merit its own special type of judge,

    Because in order for the trial to be fair and honest (I am trying to keep a straight face here), or at least half-way decent, the judge has to understand the issues involved. Look at Kevin Mitnick's case. The judge was a total asshole and, as I've heard -- although this looks like an urban legend -- refused to let him use a telephone in his cell for the fear that he would whistle modem tones into it, connect to some computer system and blow up USA or something.

    In any case, there is precedent: tax cases are decided by special tax court for precisely the same reasons. Tax issues are so "technical" that normal judges are expected to be unqualified to judge on them.

    no judge could keep up with all of the advances in the various fields of computing unless they worked in them.

    They don't have to. You are confusing judges and patent assessors :-)

    A judge that knows, say, the difference between a compiler and a linker would be a great advance over what we have now.

    And if they did, you could never be sure that they were unbiased.

    Biased in whose favor? And why knowing "tech" stuff should make them different, bias-wise, from "normal" judges?

    and stick with what we know works.

    Works? And, pray tell, what makes you think that the justice system in the USA now works? Oh, sure, the cases move through the courts, but are you saying that the system we have now is the best of all possible ones?

    Kaa

  • (cringes at the wrath she may receive)

    I've seen endless comments here about the braind-amaged rulings that keep getting made about IP issues and such. Perhaps if the court had better knowledge of the issues involved and the potential implications, high-priced corporate lawyers wouldn't be able to get away with inaccurate technojargon and better rulings might result? I mean, it's not like the rulings on these sorts of issues (with the exception of the Microsoft one) have been all that great, y'know.



    --meredith
  • Only problem with the advisor idea is the same problem with Kaplan and his former employment with TW in the decss case - any person involved with the judical system and employed on a permanent basis can be in no way imparitial to every case he sees. Most judges are ethical and step down or pass the case along to a different judge if there is a conflict, and I would suspect similar advice could apply to a tech advisor, but I would expect that there would be very few of these compared to the number of judges, and so passing on the task will not be easy.

    OTOH, if the case could call for a technically qualified person in that field, maybe the two parties could pick an advisor from said case as with jury selection -- but again, the numbers of people that will be willing here would be low and this basically amounts to having the expert witness. Generally expert witnesses are supposed to be unbiased and are necessary to clear up the scientific mumblings of the law, just to so the side that does bring him in that *science*, not what the guy said, but the fundamental laws of science, are in that side's favor.

  • Having read the first fifty or so comments, I am surprised by how many people have missed one of the main points which is that in spite of volumes of evidence to the contrary, Microsoft is still basically insisting that they "did nothing wrong", in spite of the fact that very few of the "findings of fact" upon which Judge Jackson based his decision are really in dispute.

    So when the NYT reports that Microsoft thinks they got a bad decision because the judge didn't understand the technical, I am inclined to remind M$ that the specific reason they lost is that Judge J. was not only probably the most clued in judge they could have had the misfortune to come to trial with, and he gave them every chance to settle the anti-trust litigation -- and they, not he, blew every chance they had to get a better outcome for their company.

    Also, AFAICT (as far as I can tell, if you're new to /., IRC, etc.) Microsof still continues to use 90% of the same unfair business practices which the Sherman acts prohibit (tying, etc.), and aren't really interested in changing the way they do business in the future.

    And as a measure of whether or not their monopoly power has a negative effect on consumers: witness the rise in OEM cost for the basic x86 OS, for example -- rising from a few dollars back in the MS-DOS days, $20-40 during the early Windows days, to (last time I sold a system -- about a year ago -- I'm doing software exclusively now), $100 or more.

    Which is why (on those rare days when I have extra time, like today), I work on Open Source projects or training other corporate folks in the OpenSource model of IT development. I may not be the loudest Open Source proponent, nor the most articulate, but I do know one thing: the best software choices for the future aren't centered around M$, because of the exact issues that I feel Judge Jackson correctly nailed M$ for.

  • A bit-for-bit copy of a CSS-scrambled DVD is useless, as it is impossible to copy the session key tracks without specialised equipment.

    Again, that's access control, not copy prevention -- the bits have indeed been copied, but the data is inaccessible.

    If you have any further legal questions

    You said that this discussion is to be limited to technical questions. Which is it?
    /.

  • We are in 2000 AD [fortunecity.com] , ain't we?

    The best judge you can expect is Judge Dredd [fortunecity.com] .

    Hi from Richard M Stallman Block!
    __
  • All this is perfectly true, and I never denied it. However, you appear to have missed two points:

    1. The fact that the CSS standard is anticompetitive and leads to player lock-in is irrelevant to the DeCSS case. Contrary to what you might think, monopolistic behaviour is not illegal per se, and it certainly doesn't nullify your rights to have your copyrights respected -- including the protections of the DMCA, which whatever you might think of it, was passed by both House and Senate.

    2. The Hong Kong pirates, and anyone else carrying out the piece of reverse engineering you describe, are committing an offense under the DMCA, as they are circumventing a copy protection device. CSS consists of the hardware and the encryption; an attack on either is an attack on the whole, and illegal.

    Hence my point; it's much easier for a lawyer to understand the technical issues than a techie to understand the law. Lawyers don't get emotional and lose their objectivity over technical issues; the vice versa doesn't hold.

  • A bitwise copy of the DVD would be playable in a standard DVD player.

    Bzzzt, wrong, thanks for playing. A bitwise copy (in the normal sense) would not include the session key tracks, and would not be playable on a normal DVD player (or for that matter, any DVD player). CSS controls copying by placing the keys in a separate place from the encrypted data, and preventing straightforward access to the key tracks. It is both a playback control and a copy protection device, and the distinction is unimportant for the purposes of the DMCA in any case.

  • I say we keep this elitism out of the judicial system, and stick with what we know works.

    The problem is that not only does the law not work, it never has done. Law and justice are very different things. The law is just an approximation to justice, that has been, for the most part, close enough that we can pretend it works. As techonology is progressing faster than law, though, that approximation is becoming less and less accurate. Whether separate tech courts are a solution to this problem is debatable, and we may indeed be better off sticking with the current system. But that system most definitely does not work. It's just that it may be less broken than the alternatives.

  • to understand "leveraging a monopoly in one sector to gain an advantage in another sector", - M$ft are masters of the "if you can't dazzle them with brillance, blind them with bullshit" game - heck, I use technical obfuscation myself sometimes to get my way, if you can get your judge to think, "Hmmm, I don't understand, so he must be right." The problem in the M$ft case is they finally came up against someone who wouldn't fall for that crap. This idea smacks of jury packing. It's doesnt' matter if you monopoly is a railroad, an electric company, a waterworks, or DOS - technical competance has nothing to do with it. Msft had plenty of opportunity to interpret their case to the judge, and explain just how integrating an add on commodity internet browser into their monopoly OS was NOT an anticompetitive act to give their backward (at the time) product a leg up in the market, just as integrating a word processor into their monopoly OS would be anticompetitive in the word processor application market.

    Those guys need a precipitous drop from the sublime to the rediculous. The bigger they are, the harder they fall.

    Hmmm, StarOffice for $39.95.

  • Uh - how can people in Hong Kong commit an offense under the DMCA, as they don't live in the U.S.A.?

    Yes, they can commit offenses under international copyright laws (such as making copies unauthorised by the copyright holder that do not fall under the heading of 'fair use'), but I have this strange feeling that the fscked up shit that went into the DMCA (like circumventing & reverse-engineering access control mechanisms) doesn't quite fall under that heading.

    K.
  • justice must not only be done but be seen to be done.

    ... things that are supposedly too hard for ordinary (read: stupid) people to understand ... that only supersmart people who speak techiegook ... are competent to testify in them.

    Ah, so every American speaks fluent Legalese now?

    How many people have read and actually understood Judge Jackson's Findings of Fact in the Microsoft Monopoly case, for example? I didn't understand one bit of it - not because I'm not technically inclined, quite the contrary, but because I, like so many other people, don't fully understand legalese.

    I quite liked the way the "silicon implants cause cancer" case was handled, where the judge appointed an expert panel that questioned the two sides expert witnesses and then gave an evaluation of the evidence in terms "the court" (ie. judges and jurors) could understand.

    That would, imho, be the best solution: to assign a board of impartial technically savvy people to advise the existing court, maybe permanent, maybe on a case-to-case basis, instead of creating a separate court.

    )O(
    Never underestimate the power of stupidity
  • Imagine eJudges sitting in eCourts and applying eLaws (and iLaws) to ePeople and eCompanies. What do you, eGeeks and iNerds think?
  • My latest stint of jury duty convinced me that the problem isn't completely with the courts, but also with the jurors. At least half of our number was ruled completely by emotion rather than logic. If you hope to get an outcome that has any congruity with reality, you're going to have to get rid of these people. Of course, when reality is against you, these are exactly the folks you want. Which is why it'll probably never happen.
  • I had a speeding ticket and argued it was so technical and esoteric that the judge couldn't understand. He told me to get the hell out of his courtroom.
  • Point 1. In other words, more arguing needs to be done. I understand you are confining yourself to the points of law. But if you step back and take the big picture, why was the monopolistic behaviour not debated in the public, but the DVDCCA allowed make such a device to control public viewing?

    Should the exercise of copyright enable monopolistic behaviour? This is an ethical issue, not a point of law.

    Point 2. The pirates who have done this are in many circumstances are operating outside of the jurisdiction of the DMCA. And they did their reverse engineering before the DMCA took effect.

    Which leads to another point. Simplying XORing the data-stream would have been sufficient, if all you wanted was legal protection using this anti-reverse-engineering clause. As it stands, CSS session keys are simply too weak. Software players exist to brute force the key and they work, I am told.

    The DMCA itself also allows for the reverse-engineering for interoperability. As it is, LiViD is a effort to do so for the Linux platform. That it had to use code suggested by DeCSS should not detract from this goal.

  • Bzzzt, wrong, thanks for playing. A bitwise copy (in the normal sense) would not include the session key tracks, and would not be playable on a normal DVD player (or for that matter, any DVD player). CSS controls copying by placing the keys in a separate place from the encrypted data, and preventing straightforward access to the key tracks. It is both a playback control and a copy protection device, and the distinction is unimportant for the purposes of the DMCA in any case.



    What kind of crack are you smoking? A perfect copy of the DVD is easily possible and they are created all of the time. The Keys are on the DVD, otherwise their existence would be pointless. Anything on the DVD is physically copyable. CSS does not prevent this.

    Kintanon
  • why not... you already have different laws depending on the race or sex of the victim/perpetrator (hate crime, domestic abuse, etc).

    why not have different laws for different professions? "Five years? That's nothing. You're lucky you aren't a bricklayer; they get 10 years for murder!".

    -c

  • The keys are on separate tracks of the DVD, which are read separately from the reading of the output. It is not possible to "Physically copy" the key tracks without licensing a special piece of equipment, or without reverse engineering a DVD player to gain access to the read signal from the key tracks. This second activity also counts as "circumventing a copy protection device".


    But the copy protection device being circumvented is NOT CSS, it's a physical measure. CSS is not what prevents copying and DECSS does not bypass the physical protection method. DECSS does not circumvent copy protection, it circumvents playback protection.

    Kintanon

  • Money rules (Score:3)

    by weeble ( 50918 ) on Wednesday September 13, 2000 @02:18AM (#783431) Homepage
    I believe we would not see any more 'fair' justice. I do not believe that judge Kaplan would have had a different verdict had he been better informed regarding the relevant technologies.

    OJ proved (the following civil case against him vindicated this view point) the the outcome of a trial in the US can be bought.

    Having technology courts in the US may help, but does not tackle the cause of the problem.
  • Why do I suddenly come to think of when the judge ordered that Kevin Mitnick not have access to a phone from his prison cell in fear that he might somehow continue his hacking spree by whistling into the telephone...
  • I hope at least they would require so type of degree in CS for the judges. What would the requirement be for the judges that they are Office Certified? Or will they have a team of experts with a head Judge controling them? THis has alot of merit if it is done right.

  • Two quick comments: (Score:4)

    by Masem ( 1171 ) on Wednesday September 13, 2000 @02:20AM (#783437)
    1) I doubt tech courts would have helped 2600 -- as the other article today points out, this is more of a free speech issue as 2600 never created the code, though there are issues as the use of the code. But the creation of such courts could be a good think.

    2) Unfortunately, there are too many issues at stack *right now* that by the time the tech courts would be in place, these issues would have exhausted their appeals process. Take a look at the problems with the Patent office in getting computer technological compenent people into place.

    3) Very very commonly, cases involving sciences use an expert witness, generally a scientist or engineer that is unrelated to the case but an expert in the field. I would think a similar system would work for computer experts, however, there is something of an informal fraternity of geekdome throughout this area, so that finding a computer expert that was imparital to the deCSS case would probably be very difficult. But I don't see why this can't be attempted at least.

  • What is Maryland known for? Seafood and speeding tickets!!

    And ex-governors doing jail time.... I love living in MD, honest!

    Ladies, gentlemen, and /.ers, the problem is not just in the Judiciary. Even Judge Patel admitted that the DMCA has created a monumental legal snafu. A snafu which, I should point out, began in the Legislative branch where the laws were first written.

    DMCA is policy laundering from no one else but Bill and Al. They failed to even get this piece of crap considered--until they ran overseas and got a treaty that we then had to enforce. This whole business is about Bill Clinton and Al Gore trying to enslave the world at the behest of their money weilding supporters...the corporations.

    And even if this gets to the Federal level, remember that the judges are appointed by the Executive branch, with the approval of the Legislative branch. They have always had the ability to stack the Judiciary with whatever judges they want, and have done so for the past few decades.

    Kaplan is a Clinton appointee and about as corrupt. Can you imagine what a Gore appointee would be like? They'd all have to think that Al invented the internet to get on the bench.

    Please also note the 7th Amendment, which says you have a right to trial by jury in cases where more than 20 bucks is involved. Juries, on the whole, are out of the process at the federal level because they can't be bought and paid for with MPAA and RIAA money nearly as easily.

  • My basic solution to all of this court misconduct by both judges and prosecutors is actually have them accountable. Plus, get rid of about 90% of the courts and 99% of the laws that go with them.

    End all judicial and prosicutorial immunity and have them subject to an automatic, maximum penalty that the accused was threatened with when the misconduct occurred.

    Perhaps that would set a general mood that courts are not the playground of leagal BS mumbo-jumbo and that the court workers are not above the law.

    Now, for the 2600 case in particular, maybe if the bench verdict was appealed to a jury some sensable verdict might be reached. However, even though I ain't no lawyer, I do not think that a jury is an option.

    <rant>
    BTW, you do NOT have a right to a jury trial, you have a right to "due process", does not have to include a jury (or in the case of the IRS, a real court or judge). Unfortuantely, the government, entertainment industry and news media, have given the general public plenty of misinformation about the court process and what "due process" really is.

    Maybe holding the courts to that fantasy that they wis perpetuated outside of their big oak doors would work? Where everybody gets read their rights (no longer required almost anyplace), court appointed lawyers actually win cases, warrants must be filled out and signed to be admissable, nobody is coerced, rights to various hearings are never signed away to be moved to a better part of the jail, etc. (review the actions of the state in the Mitnick case).

    Might that knock a dent in that 98% fed "conviction" rate and maybe the USA would not be the home to 25% (or is it 50%) of the whole world's prisoners?
    </rant>

    Visit DC2600 [dc2600.com]
  • The above is the quality that you get when beurocrats are given any power over your life.

    Exactly. What happens in that specialised tax court will likely also happen in a specialised tech court. Specialised judges will simply not be impartial because they know too much, and have over time formed too many personal opinions that will interfere with their impartiality.

    As a judge (or lawyer?) said some distance up in this discussion, judges and lawyers are the most intelligent people in American society. As he said, a good judge (or lawyer) will be able to grasp the necessary knowledge about any field within a short time, from aerodynamics in case of a plane crash case to structural engineering in an unsafe building case. A judge should gather facts and knowledge about a field he previously had no knowledge about and draw an impartial conclusion based on only those relevant facts and knowledge.

    Another reason why a tech court would probably be a bad thing is, how do you decide whether a judge has technical knowledge and in what fields? There's way too much risk of big corporations influencing judges by means other than relevant facts.

    )O(
    Never underestimate the power of stupidity
  • No, you can use a bit-for-bit copy if you can find some way of generating the session keys. The scrambling of the content, plus the inaccessibility of the session keys, together, go to make up CSS.
    I don't think you could "easily" emulate the DVD session keys just by "writing a driver". Unless you have a specialised piece of equipment, or unless you can steal them by hacking a DVD-player (this, btw, would also count as "circumventing a copy protection device" under the DMCA). What kind of technique do you have in mind? (BTW, feel free; general discussion of techniques, as opposed to the creation of tools, is very definitely protected speech for which the strict test applies.)



    Disclaimer: I think you're an idiot.

    A bitwise copy of the DVD would be playable in a standard DVD player. CSS does not prevent the creation of a bit for bit copy of the DVD. Hence CSS does not prevent Mass Pirateing of a DVD. CSS only controls playback by disallowing playback on non MPAA approved players. From this we can draw the following conclusion: CSS is a playback control device, not a copyprotection device.
    The addition of 'special equipment' into the picture is irrelevant.

    Kintanon
  • The Hong Kong pirate was an example raised by me to answer the technical point: how does one make a bit-by-bit copy of a DVD?

    It is to point out that CSS does nothing to actually control copying, and everything to control access. If these pirates can copy DVD's without circumventing any copy-protection, then Why is CSS necessary? Why does the MPAA not go after the Big Time Pirates (they are certainly rich enough to do this) but instead go after the people who have bought DVD's, and (by using DeCSS), desire to buy more DVDs?

  • Interesting discussion nonetheless.

    Lawyers don't get emotional and lose their objectivity over technical issues; the vice versa doesn't hold.

    There was a joke about the differance between a farmer and a redneck - the farmer raises cattle, but the redneck gets emotionally involved :)) I'm starting to think the differance between a computer scientist and a computer hacker is the scientist writes software for a living but...

    BTW - not everyone here are 'kids' (41)

  • Our Technology and Construction Court [courtservice.gov.uk] was founded in 1890 to try cases with a heavyweight technical dimension; they cover any case that has any kind of tech angle from big civil engineering to pcbs (and I've handled cases from both ends of the spectrum there). What follows is a practitioner's view.

    The judges are drawn from the bar who practice in that field of law. They're people who understand the industries they have before them as a result of working as part of the legal support of those industries for twenty or more years before elevation to the bench.

    That's the theory: the practice is less than a hundred per cent as in anything with people involved. I could, but won't, name a couple of T&C judges who are blithering old idiots.

    That said, I can name still others who are sharp, incisive and know their stuff very well and who aren't afraid to inform themselves on the way things work (I know at least on judge at T&C in London who knows how HTML works, principally because I explained it to him).

    The software copyright and confidentiality angle is dealt with by the Chancery Division of the High Court, whose judges have a solid grounding in these sorts of issues through hearing cases and, increasingly, through having been practitioners.

    Choice of forum is left to the litigants, by and large: if it's more hardware or software engineering, go to T&C. If it's copyrights, designs and patents, go to Chancery. Sometimes it's a judgment call between the two, but I think the essence of it is that either way you get a professional judge rather than <flame> an elected buffoon with the professional standards of a chartered accountant.</flame>

  • ... probably never happen

    It did here in the UK, back in the 30s, with juries removed from civil trials except where an application is made to the court for jury trial (and it almost never is, judges sitting without juries being more reliable and predictable than juries).

    The exceptions are defamation and police misfeasance actions, where the rule is jury trial unless there are compelling reasons otherwise.

    Jury trials in criminal matters are unaffected (yet) which is as it should be.

  • Regarding the breast implant thing, my recollection of the case is that there was a long running media "scandal" where various claims were made that the silicone used in implant was dangerous to health, especially if the implants rupture. Several lawsuits were introduced in various US, Canadian and British courts against the manufacturers, including Dow Corning, which was bankrupted by the affair, and had previously had an excellent reputation for ethical behaviour.

    There actually seem to have been several efforts to use independent experts to resolve the case. The best reference appears to be this articel [asu.edu]. There's so radical change to the usual common law way of doing things here, the judges just used independent experts to try to resolve conflicting claims and work out whose evidence to throw out.

    I doubt this will really help with biased judges, or lawyers who fail to introduce relevant evidence (as seems to have happended in your jury story). Unfortunately this is the nature of our system: the lawyers decide what goes before the court and the judge decides whether its admissable. The Roman law "inquisitorial" jurisdictions (like France) have an advantage in that the magistrates can order new investigations and gather evidence themselves if they think it necessary. Of course, this still doesn't help if they're prejudiced, or can't see the need for new evidence.

    Regarding your other comments: yeah, I agree the current system fails in the goal of transparency, and we already seem to be headed towards an elite cabal of technolawyers. I think we broadly agree that whats needed is some mechanism to ensure trials are not shrouded in gobbledegook of any kind, so the jury, and the watching public, can reach their conclusions.

  • Now that, my man, is a sweet troll. Much better than my effort below. Watch 'em flock to it. Mad props.
  • "For Judge Jackson to honestly make the comment that he was ill-equipped says something," said James L. Thompson ...
    That is not what he said:
    Judge Jackson said he had backed a proposal by the Justice Department and state attorneys general to break up Microsoft because "there's no way I can equip myself to do a better job than they have done."
    There's a big difference between the two, and Thompson iss twisting Jackson's words. Unless he was quoting a different statement, in which case the NYT article is a little misleading.

  • I think this is dangerous, just one more way the government is trying to rein in the computer industry.

    The computer industry thrives on competition, anything interfering with that competition will hurt the computer industry.

    Can you imagine what would have happened if Novell sued Microsoft for including non IPX protocols in Windows? We'd still be stuck running IPX intead of IP, forget about having an internet.

    Can you imagine what would have happened in DEC had sued Novell over networking software? We'd still be stuck in the stone ages on networking, rampant competition is good for the consumer.

    Linux sure hasn't needed any government help to battle Microsoft, eventually the free hand of the marketplace catches up with everyone, and then bitchslaps them.

    If this government interference keeps up, I can only see the US computer industry being saddled and tied down with regulations and litigation fears, like Europes, and the quickest computer innovations will probabaly take place elsewhere, Japan probably, just like Gibson predicted.
  • This strikes me as exactly the wrong thing to do. To attack the problem of public (and courthouse) knowledge of technical issues, we ought to be encouraging ways to increase the public's exposure to technical issues. If we segregate them in a special justice system, we segregate technical people into a "special" group, which would be subject to resentment from the public at large. It would create a formalized, legally enforced, "class society".
  • Yes, specilized courts like tax courts are evil. The solution to things like the DeCSS case is really to (a) make conflict of intrest a much bigger crime (and make it easy to convict a judge like Kaplan of conflict of interest) and (b) make going to industry lobing seminars a conflict of interest.

    I would say a judge making a decission like Kaplans should be tried for conflict of interest for mearly having been to several seminars which can be shown to have been intended to influence his opinion. now, he would not be convicted untill the content of those seminars was fully examined (i.e. did the experence create an "interest"), but the fact that he would need to stand trial should prevent many problems.

    I would say we also need some kind of anti-matching fund for lobists or a lobist tax to limit the effectivness of spending large ammounts of money on lobing judges and representitives. If your corperate lobists spend $1 million dollars then their oposing lobists (like consumer activists or enviromentalists) recieve $100,000 (10%) of that money to spend on countering your expendatures. This would help keep the lobists plaing field even, so representitives would hear all the diffrent opinions that they need to hear.
  • You are right. But additionally, people attempting to view the DVDs on licensed players are also intent on circumventing copy protection. Why? Becuase it was a US customer trying to view a Japanese DVD!

    The legitimate players giving customers a way to break the rgion encoding too, is a circumvention device.

    The old Xing player, which cannot view newly produced DVDs (becuase of the revocation of the player keys) is also attempting to circumvent copy protection.

    When licensed players view unencrypted content, it is circumventing the copy protection. (Becuase the Content happens to be GPLed, and cannot be subject to restrictions imposed by the MPAA cartel.)

    Weaselly streetlawyer vs slashdot geek - who will win?

  • And to answer your question directly: no. the Hong Kong pirates weren't copying the DVDs. They were merely writing them, encrypted content and player keys - everything!

    If and when Hong Kong adopts the DMCA, it may not be the case that these DVD stamping factories are illegal. They merely stamp. Who circumvented the copy protection on the original DVD? The real culprit is unknown, and the MPAA would probably never know. Nevermind - let's persecute these guys under the DMCA becuase they are copying.

    Face it. DMCA + CSS = screwed up, half-assed legislation.

  • I'm not a expert on Kevin Mitnick, but wasn't a big part of his shtick "social engineering", like calling folks on the PHONE to get passwords and other info about the systems he wanted to crack?


    Sean

  • Anyone who have read transcripts from Judge Jackson know that he knew what he was talking about. Microsoft IS a monopoly, just like AT&T and many others before. When a huge company strangles the market, killing off all competition, something must be done by the government.

    While it may be interesting to argue technicalities in a court of Law, the fact is most of these "tech-cases" are about freedom and other Law-issues. However, Microsoft wants to argue details about how to implement an OS with a browser "their way", which is completely besides the point and the final ruling. Tech-issues would only shift the focus AWAY from important issues, like freedom, privacy and general legality, which is what courts are all about.

    "Tech-courts" would be a VERY BAD THING. It would fragment an already complex court-system further. I suspect it could become yet another loop-hole for huge corporations, funding whatever judges they want this week.

    What is Microsoft basically saying here?

    "The hell with the Judges, we want our own courts!!"

    Everyone everywhere should cringe at the very thought of this. Educate the Judges on technical issues, don't replace your legal system.

    - Steeltoe
  • Setting up special 'techno-courts' has the glossy sheen of futurism and hipness, but if the proposed high-tech courts are specialized by the content of their trials, what's to stop them from becoming self-perpetuating, invasive, and self-aggrandizing bodies within their particular fields of purported expertise, and using that expertise as a means of blocking criticism? Would such special courts be an improvement over better educating the existing judiciary?

    We already have a perfect example of how specilized courts work (actually, they don't work very well) and that is called Tax Court.

    What happens in any of these ivory tower systems is that the common folks (including those of us on /.) get bamboozeled by the "self-aggrandizing bodies within their particular fields of purported expertise". This is certainly not justice.

    The 2600 case was one of pure bias, no decision in that case was backed up by any fact, and it would have probably been worse in a specialized court. It happens in "tax court" every day: state brings charges, state inflicts punishment, you have to prove yourself not-guilty.

    I wish that I had the refrence for a glairing case of this from just a couple of years ago. An individual had paid his tax bill. The IRS cashed his check. Taxpayer had the cancelled check and bank records that the money left his bank and went to the IRS bank. The bank that the IRS used to clear the check lost the money. The IRS went after the tax payer. No matter how many times he produced the cancelled check the IRS said "we still do not have payment". The tax court ordered the guy to pay again! Now, if a group of "regular folks" had gotten to hear this case, it would have ruled for the tax payer, since the poor guy does not run the bank and all, but an "expert court" ruled the other way.

    The above is the quality that you get when beurocrats are given any power over your life.

    Visit DC2600 [dc2600.com]
  • I think this could work, but it has to be done sensibly. In the UK we have specialist family courts, and various kinds of specialist commercial courts. The judges are still judges, meeting theusual criteria for the job, but, since they work in the specialized courts, they build up a general background knowledge in their area.

    A tech court judge would not be expected to know everything about every topic they would be called upon to judge, but they would be in a better starting position to understand when one or other side tried to explain the technical background of their argument. The tech courts might also have special rules or procedures, for example allowing the court to appoint neutral expert assessors, or allowing more streamlined procedures for complex technical submissions. They would also be an expert on the most relevant areas of the law

    Could be worth trying, but needs to be done sensibly.

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