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The Courts Government News

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him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.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 Lumpy ( 12016 ) on Friday November 30, 2001 @02:56PM (#2637741) Homepage
    Everything must be released for science and research.

    So when I release how to let's say hack the judges email account I must preamble it with....

    This is purely for scientific and study research.

    Is this how a ruling is used in courts? or is it basically the judge blowing gas out his robes and just deciding that the RIAA coffers lubed him quite well?

    (I know, in courts the most money wins, not justice or truth.... we have O.J. to thank for showing the country that.)
  • by Software Cowboy ( 9112 ) on Friday November 30, 2001 @03:01PM (#2637779)
    I think what he probably meant is that one was for commercial gain (Dmitri) and the other was for research (Felton).
  • Good writeup (Score:0, Interesting)

    by electroniceric ( 468976 ) on Friday November 30, 2001 @03:03PM (#2637788)
    Interestingly, as a result of your description of the hearing, I'm much more inclined to side with the judge than I otherwise would have been. IANAL, but: While it's almost certainly true that the RIAA will threaten people like Felten again, I believe the judge was upholding the following principle of the law:
    You can't punish people things they haven't yet done.

    That is to say, the RIAA was flexing its muscles, but to issue and injunction or try to rule on the DMCA based merely on serving someone a letter would be overextending the reach of the law. It sucks, but you just can't punish people that kind of vague use of the law as intimidation.
    We'll just have to hope for better in the next round.
  • by Christopher Bibbs ( 14 ) on Friday November 30, 2001 @03:04PM (#2637795) Homepage Journal
    It seems that the judge ruled here that since Felten didn't sell the code or make a product based off of it, he's in the free and clear from DMCA and other laws. He also didn't seem concerned with Scientific American selling copies of that code. I'd think this would make a precedent for anyone that wanted to, say, make DVD decryption software for scientific purposes. Or am I missing something here?
  • by the_2nd_coming ( 444906 ) on Friday November 30, 2001 @03:08PM (#2637814) Homepage
    the 2600 case [] where Hollywood won.

    how can these judges not see that the constitution is a growing entity. communication changes and so does the definition of speech.
    just because the framers did not see computers or movies at the time does not make Digital/mass media a playground for first amendment abridgments.
  • by Paul Johnson ( 33553 ) on Friday November 30, 2001 @03:31PM (#2637912) Homepage
    Which is what Dr. David S. Touretzky has done here [].

    Its noticable that Dr. Touretzky has been threatened by the MPA, but the threat has neither been withdrawn nor acted upon (AFAIK). It seems to me that the EFF might have used that in the Felten case as evidence that the threat against Felten was not an isolated case, and the withdrawal of the threat against Felten was an attempt to avoid clarification of the law.


  • by DarkZero ( 516460 ) on Friday November 30, 2001 @03:31PM (#2637914)
    This article really opened my eyes. It made me realize something important. Slashdot and 2600 always paint a grim, horrible picture of judges, telling us that they decided after only twenty-five minutes of debate, that they're always completely uninformed, etcetera. But in this case, Felten, the EFF, and their vocal supporters like Slashdot and 2600 are the ones who are wrong.

    The RIAA is clearly an evil organization. They and their cohorts like Disney and the MPAA even make open statements about how privacy laws are an obstacle to their profits. There's no question that they are evil. But judges have to take cases, at least for the most part, on an action-by-action basis. In this case, the RIAA did something clearly evil (threatening Felten), but they then rectified it. All speculation about their motives aside, they DID rectify it, for whatever reason. Yet after they rectify it, Felten and the EFF try to go after the RIAA in an attempt to get a fully illegal and immoral immunity from prosecution, despite the lack of an ongoing controversy or action on the RIAA's part. If it were the RIAA asking the courts for the right never to be sued by scientific researchers or the EFF, all of us would've said that their actions were illegal, immoral, and just plain ridiculous. But when scientific researchers and the EFF ask the courts for the right never to be seued by the RIAA, we hail it as a wonderful thing and call its rejection a blow against freedom. That's just ridiculous.

    I fully believe that the RIAA and the DMCA are evil, and that Felten should not be stopped from publishing his work. But the RIAA deserves their right to sue, just like we have the right to sue them. Felten's attempts to get immunity against being sued by the RIAA is playing dirty and going even below their level, because by asking for a right not to be sued, Felten was trying to take away the RIAA's freedom to sue people that may legitimately wrong them. While some may call this flamebait, I just think that this is one of those instances where we were wrong. This case wasn't a fight for freedom. It was a fight to take away the freedoms of others because we don't like what they're doing and the way they use their rights. Isn't that exactly what the RIAA has been trying to do to us?

    Just because your opponent fights dirty doesn't mean that it isn't wrong for you to do the same.

  • by SirSlud ( 67381 ) on Friday November 30, 2001 @03:35PM (#2637938) Homepage
    You need an amentdment there: One was for commercial gain by a non American, non wealthy non large corperate interest, and the other was for an American reseacher in good standing. History is rife with examples of companies that either bent the law, only to have it changed (because capitalism depends on those companies for the health of its economy), where as individuals who seek or toy with similar changes are far more likely to be nailed to the wall. Financial interest is a misnomer. Financial contribution to the economy (~= size of company, revenues) is the true measure the government and judicial process goes by when balancing the rights of the individual, and laws of the country. It's no surprise, for instance, that Disney was one of the main backers, each time the copyright laws have been extended. MS looks like they'll get a slap on the wrist (and a whole new generation of users), in light of the US's current economy. Meanwhile, the Dimitri's, because their work will not feed back into the economy at nearly the same level as those two behemoths, is jailed. Obviously, it's not cut and dried, but you'd have to be quite naive to not factor in the importance of the participatory groups to the economy the judicial system in question operates in.
  • by JoeShmoe ( 90109 ) <> on Friday November 30, 2001 @03:39PM (#2637951)
    Does anyone else seem to get a sense that in the not-so-distant future the only people who will be allowed to access, examine, copy, quote, share and distribute information will be teachers?

    Can I show a movie to a bunch of strangers? No, that constitutes a "public performance" and I would get fined for it. But can teachers show a movie to their class? Apparently they can.

    Can I put an a clip from a TV show on my webpage and point out why it's so particularly funny? No, that's illegal copyright infringement and lawyers would have me take it down. But can teachers put a clip from a TV show on their webserver and ask the class to write a ten page paper on the message? Apparently they can.

    Can I disassemble an encryption format and post the result for others to examine and duplicate? No, that's a DMCA violation and the FBI would be after me. But can teachers disassemble an encryption format and post an in-depth analysis of how it works (or doesn't work)? Apparently they can.

    I could go on, but it seems to me that in the coming years, I might want to think about moving towards "Education" as an excuse for information exchange.

    Don't have a warez group. Have a "copy protection analysis and discussion" group. Don't have a TVRip group. Have a "Pop culture examination and analysis" group.

    I mean, who's an authority on something? Who is a teacher except someone who can explain concepts to those who do not yet know them?

    If Felten seems to enjoy some magical protection, in the eyes of the court, why can't any other teacher? Why can't I become a teacher and enjoy the same protection?

    - JoeShmoe
  • by Dr.Dubious DDQ ( 11968 ) on Friday November 30, 2001 @04:12PM (#2638132) Homepage
    Dmitry broke the law and Felton did not?

    This is something that really bothers me about this whole situation. It seems the only way to challenge a law is to become a criminal. As I understood it, what Felton was trying to do was get a firm decision from the courts declaring once-and-for-all whether or not publishing information about decryption is grounds for being sued - or threatened with suits! - under the DMCA.

    I got the impression that the judge was, in effect, saying "I don't personally think what you were doing was grounds for lawsuit but since the threat was withdrawn I don't have to decide officially. So there. Case dismissed. Come back next time somebody sues you."

    It seems that in the US legal system, if you think a law is unconstitutional, the only way to get the courts to decide on it is to break the law and get yourself arrested. If you're only in jail for a year or less (while the courts deliberate and lawyers babble and corporations exchange money and so on) before the courts let you go, then you were right...

  • by saint10 ( 248611 ) on Friday November 30, 2001 @04:18PM (#2638153)
    Only if these judges actually knew what was really going on. They state the primary reason the DeCSS source isnt free speech is due to the fact that it does not need a "human component" to be functional. They make analogies to recipies and blueprints, as follows:

    The Appellants vigorously reject the idea that computer code can be regulated according to any different standard than that applicable to pure speech, i.e., speech that lacks a nonspeech component. Although recognizing that code is a series of instructions to a computer, they argue that code is no different, for First Amendment purposes, than blueprints that instruct an engineer or recipes that instruct a cook. See Supplemental Brief for Appellants at 2, 3.27 We disagree. Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet. The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse.

    This makes no sense whatsoever! So, if non-humans (computers, machines, robots, etc.) can execute a particular element of free speech without human intervention, the constitution doesnt apply! Commands by any non-human arent covered by free speech.... this is horrible.
  • by RainbowSix ( 105550 ) on Friday November 30, 2001 @04:46PM (#2638305) Homepage
    Touretzsky took part in a debate [] this afternoon about the DMCA in which one of his slides was the DCSS code and the caption was "It is illegal to show this slide." :)
  • A Heinlein moment: (Score:2, Interesting)

    by Rob Bos ( 3399 ) on Friday November 30, 2001 @07:25PM (#2639140) Homepage
    "Before we leave this matter I wish to comment on the theory implied by you, Mr. Weems, when you claimed damage to your client. There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute nor common
    law. Neither individuals nor corporations have any right to come in to court and ask that the clock of history be stopped, or turned back."

    --Robert A. Heinlein, "Life-line"

In 1869 the waffle iron was invented for people who had wrinkled waffles.