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Felten vs. RIAA Hearing 250

On Wednesday I attended a hearing in Felten vs. RIAA, the lawsuit filed by Professor Felten, other Princeton researchers, and USENIX against the RIAA, SDMI, Verance, and the Department of Justice. As you already know, the judge dismissed the case. But taking a look at the hearing might provide some insight into how the judicial system works.

An incredibly brief review of the case: SDMI created an open challenge to break various forms of technical restrictions they had designed to allow music publishers to control how people use legitimately purchased music. A team led by Felten participated and was mostly successful at breaking them. The team wrote a paper, intending to publish it at a scientific conference. The RIAA/SDMI sent a letter to Felten, his employer, and the conference threatening them with legal action. Private legal discussions and a very public flap broke out. Felten filed a pre-emptive lawsuit, seeking to have his right to publish vindicated without waiting for a suit from the RIAA or SDMI. Immediately afterward, the RIAA publicly and repeatedly withdrew their threat to sue. Eventually the paper was, in fact, published, but the suit has continued.

Or just read through the Slashdot stories.

On to yesterday's hearing. The judge has before him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.

Each side is represented by a half-dozen attorneys. Felten and several of the other plaintiffs are present as well. There are four or five press representatives. Other than that, the courtroom is empty. The first thing the judge does is take care of some routine business - the plaintiffs have requested that a C program, tinywarp.c, be filed under judicial seal with the court. The judge accepts this. He then goes briefly over the case so far, saying that he feels fully briefed by the papers submitted by both sides. He invites the plaintiff's lawyer, Gino Scarselli, to speak and respond to the last set of papers filed by the defense, but cautions him to avoid repeating any of the arguments set forth already in the many papers filed.

Scarselli emphasizes that the plaintiffs are in court for more than just the single threatening letter - he notes that the threat of legal action was considered quite real by the universities, who assigned lawyers to deal with the threat. He notes that Felten's paper was described as a "recipe for circumvention" by the defendants. He says that Felten also fears criminal prosecution due to his desire to publish a paper on SDMI in Scientific American - since Scientific American pays for papers, unlike the conference, this makes publication of the paper a commercial enterprise which might be charged as a criminal violation of the DMCA.

The judge is rather skeptical. He states that the difference between Felten and Sklyarov is "night and day". Sklyarov's actions are clearly criminal to the judge - Felten's actions not at all.

Scarselli and the judge spar a bit over a possible amendment to the complaint, regarding what exactly the plaintiffs were seeking in the lawsuit, and Scarselli retires from battle. Next up is David Kendall for the RIAA, responding to Scarselli.

Kendall starts off by talking about a stipulation (an agreement on facts) that both parties were negotiating over. Apparently both sides had almost been able to reach an agreement, except that the RIAA wanted the agreement to include dismissing the lawsuit and the plaintiffs did not. Kendall moves on to emphasize the argument they are making - that the suit should be dismissed because there is no conflict between the RIAA/SDMI and Felten. There are three reasons why a suit might be dismissed in this fashion - for mootness, because the plaintiffs lack standing to bring the suit, or because the issue isn't ripe. The judge asks Kendall which of the three would apply to this case - Kendall disclaims mootness (because that implies there once was an issue, but no longer), and states that this could be dismissed under either of the other reasons.

Richard Phillips is called to speak for the Department of Justice. Phillips states that his argument has been covered by the papers submitted and sits back down.

At this point only 40 minutes or so has elapsed. Normally, the judge might now take the case for decision, then some time later issue a written decision - instead, he decides (obviously he planned to do this in advance, since he has notes prepared) to render his decision in the case orally and immediately. He notes that he's doing so to save both parties further time and trouble, which indicates that he agrees with the defense that the case should be dismissed.

The judge starts off with the basics, which must have been rather boring to the lawyers involved. Under the Constitution, courts are limited to deciding cases where there is an actual case or controversy. He states flat-out that he sees no case or controversy here, in case anyone in the courtroom missed the hint he's already given.

He now takes a deep breath and begins going through his notes. He recaps the case from the beginning. I'll spare you that, read the documents if you wish.

Finally we get to his analysis. There are two separate issues - is there a case against the private entities? Is there a case against the Federal Government? The judge looks at the private entities first.

Again he discusses the requirement that cases be limited to actual controversies, that judges can't rule on abstract, theoretical, or speculative cases. He uses the word "speculative" approximately 20 times during his opinion, always referring to the plaintiffs' case. He relates a rambling analogy about bank fraud, essentially saying that the plaintiffs were asking for blanket immunity against ever being sued or prosecuted, which was impossible. He covers in great detail the RIAA's retraction of their threatening letter, how they've plainly denied any desire to sue Felten or anyone else over Felten's original paper.

The judge now looks at the First Amendment considerations relating to the suit against the RIAA/SDMI. He notes that the courts are required to avoid Constitutional questions if at all possible. He also notes that according to case law on the subject, there must be a real and immediate threat, that must remain throughout litigation, in order for the courts to consider the Constitutional questions around a non-criminal law (that is, the part of the DMCA that doesn't involve criminal penalties, only the possibility of civil lawsuits). Since the threat has not remained throughout litigation, he sees no Constitutional questions relating to the non-criminal part of the DMCA. He also notes that Plaintiffs do not allege they intend to violate the statute [ed. note: I'm not sure which part of the DMCA the judge was talking about right now - he may have been getting ahead of himself and talking about the criminal penalties.] and thus proceeding further would be "pre-enforcement review", which is not permitted. He closes this section by saying that he finds the Step-Saver and Salvation Army cases (referred to in the briefs submitted by both parties) instructive.

Somewhere during this speech, one of the attorneys for SDMI starts grinning, hugely, as if his team has just won the Super Bowl. He continues grinning and looking over at the attorneys for the plaintiffs until the hearing is over. None of the other attorneys for either side show any particular reaction.

The judge now continues with the suit against the Federal Government for Constitutional violations. He notes that the plaintiffs have not been directly threatened by the Government, nor prosecuted. He contrasts Felten's situation with that of Dmitry Sklyarov - the plaintiffs don't sell their program to the public, they do it for scientific purposes. Again he mentions the Step-Saver case. He quotes from the DMCA extensively. He states that the Government and plaintiffs have no adverse legal interests - that is, there is no possible criminal threat to Felten for doing what he's doing, in the judge's opinion. He notes that in the Sklyarov case there is such an adverse legal interest - obviously, Sklyarov was imprisoned! - and suggests that the Sklyarov case is a better way to get any First Amendment consequences of the DMCA adjudicated by the courts. The plaintiffs are not "manufacturing", according to the judge; nor are they offering their code for sale. The judge segues to what he sees as deficiencies in the plaintiff's legal complaint - they did not assert they planned to fully violate the criminal sections of the DMCA, mainly their assertions were that the Act is unclear and vague. Finally he closes - the plaintiffs must have an "objectively reasonable fear" of prosecution in order for the required legal conflict to exist, and the judge sees no such objectively reasonable fear.

A few more sentences and he's done. He reminds everyone that he may revise his written/final opinion from what he just dictated. He doesn't provide a time-frame for when the written opinion might be expected.

And that's it. My impression is that the most important phrase in the decision is "night and day". Judge Brown saw Sklyarov as a pirate, well-deserving of a long imprisonment term, and Felten as a goodie-two-shoes scientist who didn't have a care in the world. The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all. Both the Justice Department and the RIAA prefer to have their test cases with suitably unsavory defendants - Russian pirates and shady hacker magazines are much preferred over all-American Princeton professors. The RIAA won't make the mistake of sending threat letters to professors again - not until the DMCA issues have been well-settled in the courts, anyway. Some people have criticized the EFF for over-reaching - trying to make a case out of nothing. But to a great extent the civil liberties groups have to play with the hand they're dealt. Felten was legitimately threatened, and even if the RIAA saw their mistake and starting trying to weasel out of it, I can't fault the civil liberties groups for trying to pursue this. They plan to appeal, of course.

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Felten vs. RIAA Hearing

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  • by ichimunki ( 194887 ) on Friday November 30, 2001 @02:55PM (#2637731)
    I wouldn't. Corley/2600 were just denied their appeal by the NY Supreme Court on Wednesday (?). See III for more (or not so much more) information. But none of this bodes well for any sort of speech that relates to cracking.
  • by scratch ( 8862 ) on Friday November 30, 2001 @03:00PM (#2637768) Journal
    Crypto-gram 108 especially has some good stuff.

    Links: here [] for good DMCA analysis.

    Bruce has called the entertainment industry the single biggest threat to the computer industry, and I think he's right.
  • by mcSey921 ( 230169 ) <> on Friday November 30, 2001 @03:10PM (#2637824) Homepage Journal
    The EFF has the Open Music License [] which is sort of GPL for music license.
  • by Seth Finkelstein ( 90154 ) on Friday November 30, 2001 @03:23PM (#2637884) Homepage Journal
    Not in the specific links above, but highly recommended reading, is EFF's

    Frequently Asked Questions about Felten & USENIX v. RIAA Legal Case []

    Particularly notable:

    Q: What is EFF asking of the courts?

    EFF is filing a Declaratory Judgment suit, meaning it is asking a federal court to make a declaration of law. Since we represent the plaintiffs, (the scientists and USENIX), we are asking the court to declare that it is NOT a violation of the Digital Millennium Copyright Act (DMCA) and is protected by the First Amendment for Professor Edward Felten and his team to publish their scientific paper, "Reading Between the Lines: Lessons from the SDMI Challenge", or discuss their findings publicly at a USENIX Security Symposium in August.

    Sig: What Happened To The Censorware Project ( []

  • wired and DeCSS (Score:2, Informative)

    by ghack ( 454608 ) on Friday November 30, 2001 @03:44PM (#2637977)
    Wired published some DeCSS perl code awhile back...
  • No precedent set (Score:3, Informative)

    by kabir ( 35200 ) on Friday November 30, 2001 @03:56PM (#2638044)
    As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.
  • Re:No precedent set (Score:5, Informative)

    by Brian See ( 11276 ) <> on Friday November 30, 2001 @04:14PM (#2638138)
    As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.

    Here's a lawyerly answer: It depends.

    The Felten dismissal sets no precedent on the DMCA. The judge never made a ruling on the constitutionality of the DMCA, because he ruled that there was no justiciable case or controversy.

    No decision on the DMCA == no binding precedent established on the DMCA.

    On the other hand, if the decision is published (and it likely will be), the case will set (minor, advisory) precedent on JUSTICIABILITY issues. The court's making a decision on constitutional standing, and future courts may be bound by it.

    Of course, since it's "only" a federal district case, other federal trial courts would only give it advisory, and not binding status. If the EFF takes the case up to the Third Circuit and gets the same ruling, the Third Circuit opinion (if published) would control all lower courts -- in the Third Circuit. Again, when I talk about "setting precedent" in this paragraph, I'm talking about the constitutional standing (justiciability) issue.

    Moreover, dismissals are NOT just a "lack of legal decision". A dismissal, such as a summary judgment, can be entered by the court "with prejudice". These types of dismissals can operate as an adjudication on the merits, which means that the case is resolved with just as much finality as if a jury returned a defense verdict.

    For anyone who's left reading this digression into civil procedure, I'll stop before getting into res judicata (claim/issue preclusion).
  • by debolaz ( 526572 ) on Friday November 30, 2001 @04:27PM (#2638197) Homepage
    We all know any attempts to fight the DMCA or the RIAA (the product and the producer) has, is and will continue to be a waste of time. Why? Who knows, maybe every judge can be bought, maybe they just dont realise what they're talking about. My point is that this isnt news. We all knew exactly what would and will continue to happend in all similar cases.

    Now, im not a US citizen, neither do I plan to visit the US, so im not worried about the DMCA or the RIAA. What I am worried about is that this is sending a message out to other governments and other organizations saying that buying laws is ok. Keeping people in jail for insane reasons is ok. Threatening to slap lawsuits on someone that doesnt obey you 100% is ok. Evidently, it is ok.

    I agree with Alan in censoring security changes. He makes a very valid point. The problem isnt wheter someone will slap a lawsuit on you. The problem is wheter someone CAN slap a lawsuit on you.
  • by Anonymous Coward on Friday November 30, 2001 @04:43PM (#2638281)
    A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable.
  • by J'raxis ( 248192 ) on Friday November 30, 2001 @04:54PM (#2638365) Homepage
    ...You think that U.S. law only applies in the U.S.? You havent heard of DeCSS, have you?
  • by Anonymous Coward on Friday November 30, 2001 @05:14PM (#2638478)
    It is the Congress job to make laws...
    It is the Presidents job to enforce laws...
    It is the Coutrs job to interpert laws...

    Most of us know about prior restriant, bear with me for a moment and use that as a stepping stone. The court can't block something before it is released, they can only censor it after it has been released.

    The court is reactive, not proactive, they can't go out choose the battles themselves, the battles have to be brought to them with good merit. That means they can't look at a law and decide if it is Constitutional unless someone has been injured (sued, imprisoned, blah blah) by that law and the person that is injured is fighting back based on the grounds that the law is unconstitutional.

    It may seem off topic but a very relavant example is the War Powers Act that says Congress can Call Back Troops after 60 days if they havn't voted to Declare War, this Act is completly unconstitutional as the constitution it specifically states that the President is the Commander in Chief. If Congress ever tries to call back troops they would be violating the seperation of powers. Yet we still have the War Powers Act and the Supreme Court has never heard a case on it, why? Becuase Congress has never even thought of trying to use the War Powers Act because they know that 30 minutes after they did three dozen lawyers from the Whitehouse would be knocking on the Supreme Courts door screaming that it is unconstitutional.
  • by markmoss ( 301064 ) on Friday November 30, 2001 @05:25PM (#2638547)
    In Roe vs. Wade, the Supreme Court heard arguments and ruled although the original case was moot (Roe wasn't pregnant anymore) long before it reached the SC. But there were several special circumstances. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. The SC understood that since it takes more than 9 months to get through the various lower courts, any particular woman's case was bound to be moot before they heard it. So they considered Roe as a representative of a class -- there was always _someone_ seeking an abortion. In addition, they consolidated Roe's case with that of Hallford, a doctor who would do more abortions if they were legal and hence didn't lose his standing in 9 months...

    The SC doesn't want to decide hypothetical cases for two very good reasons. One is that most of the time the peculiar circumstances of a real case matter more than the abstract principles, so there is a likelyhood that a decision issued on a hypothetical case is likely to be too disconnected from reality. And the other thing is that historically many of the SC's worst rulings came from spewing about abstract principles that went far beyond the facts of the case at hand -- Dred Scott for instance.

    On the other hand, the lack of a way to verify in advance that publishing a certain item is protected by the 1st amendment certainly does have a chilling effect on free speech... So is the prospect of having to pay lawyers a few $100K to defend you even when there is little doubt you'll win. Or maybe the problem isn't that asserting your constitutional rights is expensive and risky, but that writing and voting for unconstitutional laws poses no risk or expense for the legislators. Now, if we could have the sponsors of unconstitutional laws liable to pay the defense and other costs, and maybe behead any congressman who wrote 3 unconstitutional bills for treason against the constitution... But I think it would be a little hard to get that amendment through congress or state legislatures.

I'm a Lisp variable -- bind me!