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The Courts Government United States News

Taking a Closer Look at the P2P Subpoenas 276

Posted by CmdrTaco from the this-is-the-real-problem-folks dept.
An anonymous reader writes "Cnet is reporting a federal appeals court on Tuesday scrutinized the details of a 1998 copyright law, wondering whether it permits the wide-scale unmasking of alleged peer-to-peer pirates by the music industry." The issue, of course, is the constitutionality of the DMCA subpoena process which is among the more evil components of the often-criticized law.
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Taking a Closer Look at the P2P Subpoenas More

Taking a Closer Look at the P2P Subpoenas

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  • News for Legal Nerds.

    On the other hand, I am Interested in the legal ramifications of IT. Oh, never mind...

    I guess the legal shit does affect us all.

  • The problem with "John Doe" lawsuits... (Score:5, Interesting)

    by sixteenraisins ( 67316 ) <tomorrowsconsonantNO@SPAMyahoo.com> on Wednesday September 17, 2003 @02:57PM (#6988499)
    ...is that the RIAA can file thousands of them arbitrarily, then assign individuals to those lawsuits once they're properly identified. At this point, I wouldn't put this strategy past them.

    William

    • Re:The problem with "John Doe" lawsuits... (Score:4, Insightful)

      by TopShelf ( 92521 ) * on Wednesday September 17, 2003 @02:59PM (#6988522) Homepage Journal
      Maybe so, but the burden of identifying the users gets much more complicated under that scenario. By going after the ISP's like they have been, they can scoop up name, address & phone number all in one place.

      • Re:The problem with "John Doe" lawsuits... (Score:5, Interesting)

        by turnstyle ( 588788 ) on Wednesday September 17, 2003 @03:13PM (#6988632) Homepage
        If they file "John Doe" they don't know who they're actually suing until they've already won (if they lose, end of story).

        So, in that scenario, expect a higher percent of sympathetic defendents, rather than fewer...

        • Re:The problem with "John Doe" lawsuits... (Score:5, Informative)

          by David Hume ( 200499 ) on Wednesday September 17, 2003 @03:41PM (#6988873) Homepage

          If they file "John Doe" they don't know who they're actually suing until they've already won (if they lose, end of story).


          This is incorrect. The RIAA can obtain a subpoena to the relevant ISP immediately after it files the "John Doe" lawsuit against the unknown defendant. The purpose of the subpoena would be to identify the defendant. After the defendant was identified, the complaint would be amended to add or substitute the defendant, and the legal action would proceed. The court would not allow the action to proceed to judgment against an unidentified defendant who never received notice of the action or an opportunity to respond.

        • Re:The problem with "John Doe" lawsuits... (Score:5, Informative)

          by ninewands ( 105734 ) on Wednesday September 17, 2003 @03:53PM (#6988978)
          Quoth the poster:
          If they file "John Doe" they don't know who they're actually suing until they've already won (if they lose, end of story).

          Actually, no ...

          If they sue "John Doe" whom they suspect is a customer of RandomInternet due to the IP address recovered from Kazaa/Gnutella/whatever, they can issue a third-party subpoena against RandomInternet for its DHCP server logs to find out who had that IP address at the time in question. This is basic discovery under most jurisdictions' Rules of Civil Procedure. Then, having discovered the name/address/telephone number of "John Doe," they can amend their pleadings to name that individual as the party defendant.

          However, it protects users' privacy and due process rights by requiring the plaintiff (RIAA) to file suit alleging a specific incident of infringement rather than allowing them to go on a "fishing expedition," which is what they (the RIAA) CLAIM the current law allows.

          Of course, it's no better for the RIAA from a PR point of view, but I just don't think they give a great hairy damn what their customers and potential customers think of them. For this reason, I will continue to not buy new CDs [dontbuycds.org].

      • Not "much more complicated." More expensive. (Score:5, Insightful)

        by David Hume ( 200499 ) on Wednesday September 17, 2003 @03:35PM (#6988816) Homepage

        Maybe so, but the burden of identifying the users gets much more complicated under that scenario. By going after the ISP's like they have been, they can scoop up name, address & phone number all in one place.


        Forcing the RIAA to first file "John Doe lawsuits" does not make the burden of identifying users "much more complicated." It may, however, make it initially more expensive.

        As stated in the linked article, the RIAA contends that the DMCA allows "copyright holders to glean the identity of alleged infringers without filing a lawsuit first." As also stated in the article, Judge John Roberts, one of the judges of the three judge appellate panel, questioned that interpretation.

        If the RIAA is incorrect, and it is forced to first file "John Doe" lawsuits, it will initially be more expensive in that they may have to pay a filing fee for each lawsuit. (It may be possible for them to file a single lawsuit in each jurisdiction where each such suit names numerous "John Doe" defendants. However, in some jurisdictions they may have to pay more for a large, multi-defendant suit.) Once the "John Doe" lawsuits are filed, the RIAA can subpoena the relevant ISPs to identify the "John Doe" defendants. It is, for an entity as well-funded as the RIAA, at most a relatively minor procedure hurdle.

        The reason why I say forcing the RIAA to first file "John Doe" lawsuits may only be "initially" more expensive is that in many cases the RIAA would have to file a lawsuit anyway -- i.e., in every case where pre-lawsuit subpoena to idenfity the downloader did not lead to a pre-lawsuit settlement.

      • Re: RIAA's problem with "John Doe" lawsuits... (Score:5, Interesting)

        by cryptoluddite ( 658517 ) on Wednesday September 17, 2003 @04:51PM (#6989441)
        The RIAA does not want to file actual lawsuits for lots of reasons. There's the higher initial cost, but the real problem for them is that they have to actually come up with evidence.

        They want to be able to write you a letter, DirecTV-style, that says "we know you are a pirate, pay us $3500 or we'll send you to debter's prison" without having to come up with decent evidence (or any evidence at all). They want to send these letters to people who haven't even downloaded/shared music and extort money from them. Preparing an actual lawsuit will cost a lot, and if they screw up they'll get smacked by the counter-suit. Plus anybody can demand a jury trial since the potential damages are large enough. It'll be hard for the RIAA to get a jury without filesharers on it and the courts and congress will not take kindly to lots of jury trials for this kind of thing.

        The next generation of P2P clients, which will provide forms of statistical anonymity, combined with DCMA exceptions, will make it extremely difficult to actually come up with evidence that anybody actually infringed on their copy right. The RIAA is just causing people to use stronger filesharing, which hurts our government's ability to find actual criminals. Not only does nobody benefit from their actions (not users, artists, or the government) but it's actually causing damange to everybody else.

  • Political Appointees (Score:4, Insightful)

    by Brahmastra ( 685988 ) on Wednesday September 17, 2003 @02:57PM (#6988501)
    Judges are political appointees. If the political parties are paid off by RIAA, MPAA, etc the rulings will be in favour of the RIAA and MPAA. There are a lot of good judges out there, but $$$$ unfortunately wins

    • Re:Political Appointees (Score:5, Informative)

      by I am Kobayashi ( 707740 ) on Wednesday September 17, 2003 @03:03PM (#6988563)
      "Judges are political appointees. If the political parties are paid off by RIAA, MPAA, etc the rulings will be in favour of the RIAA and MPAA. There are a lot of good judges out there, but $$$$ unfortunately wins"
      But federal judges are lifetime appointees, and are fairly well protected by Article III from direct political influence. So while the judge's ideology and judicial temperment is largely decided by the party in power at the time of the appointment, the judge will be a judge whether her decision is popular or not with her party. Once they are appointed it is very difficult to remove a federal judge(thankfully).
    • Most judges are voted for, and if not directly, then indirectly (by voting for those who appoint them) - so VOTE! and stop whining...
    • U.S. Federal District Judges are political appointees -- essentially for as long as they want the job. I fear few people, but District Court Judges top my list. They owe no one. You should be much more concerned about judge shopping - the plaintiff selecting the district and date and time, so that he gets the justice of his choice.
    • Actually, the opposite is true. For the most part appointed judges, especially those appointed for life, tend to try very hard to interpret the law in a fair and consistent manner. Their political bent only influences the base assumptions and on which side they will err. The number of judges that will ignore the law and rule purely on their own prejudice are few and far between. Unfortunately we have a couple on the US Supreme Court, but we knew they would be when they were appointed.

      This has caused p

    • A little about the judges in this article...

      Judge John Roberts is a Bush appointee. He's only in since May 2003. According the the article, he "questioned the RIAA's expansive interpretation of the controversial Digital Millennium Copyright Act (DMCA), which allows copyright holders to glean the identity of alleged infringers without filing a lawsuit first. Roberts said that if he left the door to his library ajar and someone entered, "that doesn't make me liable for copyright infringement."

      Judge Dougl

  • ... making a small number of people very rich indeed? First they made a small number of musicians rich, now they're just making random internet users wealthy. I'm starting to like them, I just need to work out how to get on their list.

  • New Bill In Congress (Score:5, Interesting)

    by slutdot ( 207042 ) on Wednesday September 17, 2003 @02:58PM (#6988516)
    I just read an article [arstechnica.com] about a bill introduced by Sen. Brownback which would "require owners of digital media to file a John Doe lawsuit to obtain the identifying information of an Internet user, rather than simply requesting a subpoena. Currently, the Digital Millennium Copyright Act permits copyright holders to subpoena an Internet service provider for the name and address of a person they believe is violating a copyright. The one-page subpoena request can be issued by a court clerk and doesn't require a judge's signature."

    "'There are no checks, no balances, and the alleged pirate has no opportunity to defend themselves,' Brownback said when introducing the bill. 'My colleagues, this issue is about privacy, not piracy. 'This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.'"
    • While this bill would be great for protecting citizens form evil "Trusts" such as the RIAA or indivudual very rich corporations, it would make it harder for individuals to protect themselves from real criminals and borderline sociopaths.
      There should be different guidelines on the reasons for wich a subpoena can be issued. Removing it completely isn't the best thing to do.
      • ...this bill.... would make it harder for individuals to protect themselves from real criminals and borderline sociopaths.

        Could you please explain your reasoning? I simply don't see how that is so?

        Do you think that I (or you) have turbocharged subpoena powers under the DMCA? Especially in regard to a minor issue such as a mere stalker, molester, or rapist vs. a dangerous copyright thief?

      • it would make it harder for individuals to protect themselves from real criminals and borderline sociopaths.

        Huh? How often do individual copyright holders use the DMCA's expedited subpoena provisions to order a service provider to disclose the identity of real criminals and borderline sociopaths?

        The law under discussion is *very* specific, and it's hard to see how individuals would make use of it for personal protection. The law in question (which is in US Code Title 17, section 512) says:

        (1) Req

      • >it would make it harder for individuals to protect themselves from real criminals and borderline sociopaths.

        Yes, because all software developers spend their lives in fear that Johnny might be using a pirate copy of their software to murder people with.
    • ...by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread...

      HA! oh, he's funny!

    • Re:New Bill In Congress (Score:5, Funny)

      by gsfprez ( 27403 ) on Wednesday September 17, 2003 @03:58PM (#6989011)
      those rat bastard rich-loving Republicans will do anything to stop this....

      wait, Brownback is a Republican?

  • It-Doesn't-Matter-To-Them Dept. (Score:4, Insightful)

    by phlyingpenguin ( 466669 ) < ... <niugnepgniylhp>> on Wednesday September 17, 2003 @02:59PM (#6988523) Homepage
    Scott McIntosh, an appellate lawyer with the U.S. Justice Department, assured the court that "we don't think the constitutional questions are substantial ones."

    That sounds extremely accurate to the RIAA's view. Nobody has rights, but they have copyrights!
    • And you're surprised that someone from the Ashcroft in-Justice Department would think that increased powers for... well... anyone who claims to be "punishing evil-doers"... is a GOOD thing?

      I mean, these are the guys who aren't happy with the over-reaching Patriot Act -- they want a second act that goes even further. And according to recent press they've begun giving the nudge to prosecutors to find ways to get non-terrorists nailed on terrorist charges to radically increase the penalties for other vio

  • Put your hands on the wall... (Score:5, Funny)

    by winstarman ( 624536 ) on Wednesday September 17, 2003 @02:59PM (#6988530) Homepage
    I just want to see more 12-year-old girls get sued. I mean, you can't BUY publicity like that!

    "How can we attract attention??? hmm... I dunno.. I've got it! Let's inadvertantly sue a pre-teen-daughter-of-a-single-mom!"

    Brilliant. But so very stupid at the same time.

  • poor guy (Score:4, Funny)

    by contrasutra ( 640313 ) on Wednesday September 17, 2003 @03:00PM (#6988536) Journal
    the RIAA could be forced to file thousands of "John Doe" lawsuits instead

    You KNOW this is someone's actual name. I feel so bad for him.

    Then again, Mr.Doe has probobly gotten this all his life, maybe we should help him out? www.savejohndoe.com?

    • Re:poor guy (Score:5, Informative)

      by Frymaster ( 171343 ) on Wednesday September 17, 2003 @03:08PM (#6988603) Homepage Journal
      You KNOW this is someone's actual name. I feel so bad for him.

      yes. he played guitar for the band "x" who were quite popular in souther california during the 1980's. (the band is still together, btw, and you can catch them nov 21 and 22 in l.a. at the "house of blues").

      here is a photo of mr. doe [xtheband.com]

      poor sucker.

      • Along with being a guitarist, John also co-wrote and co-sings most of the songs with former wife Exene Cervanka.

        He also has had a varied acting career [imdb.com], having been in "Great Balls of Fire", "Georgia", the TV show "Roswell" and of course, the classic "Roadhouse" with Patrick Swayze.

        I'm glad to hear that the band is back together.

    • I don't feel half as sorry for Mr. John Doe as for the smartass who requested the vanity license plate "NONE", then received every parking ticket issued for which the plate number could not be found...

  • Promising? (Score:5, Interesting)

    by __aagmrb7289 ( 652113 ) on Wednesday September 17, 2003 @03:01PM (#6988546) Journal
    There were a few promising, and some other, less promising, statements made in this article. So I'll summarize what I like/dislike:

    1. Looks like there are some politicians listening to us, a little. And a republican! 'Course, the senator is looking to defend ISPs, but the byproduct is defending the users of that ISP from having their privacy violated for no reason.
    2. Looks like there may actually be some traction happening on this issue - all prior "looks" by judges at this issue has been a quick dismissal of the concerns.

    Don't Like:
    1. The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.
    2. Ginsberg doesn't seem to understand the difference in usability for the average user between an FTP site and a P2P file sharing network. Not that his comments are invalid, but certainly the scope is very different. How do we educate our judicial system?

    Anyway, some thoughts... take them as you will (I'm sure there are things I missed here).

    Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.

    • Re:Promising? (Score:5, Insightful)

      by _avs_007 ( 459738 ) on Wednesday September 17, 2003 @03:14PM (#6988648)
      Not that I pirate or condone piracy, but I'll never understand why:

      If I record a song/tv show off the radio or TV, then let a friend borrow and copy it, why this is illegal.

      This friend could've recorded the song/tv show off the radio/tv themselves.

      I suppose you could make an argument over different markets, but lets face it. For pretty much all the popular songs floating around p2p these days, they pretty much play in every market, as every market has a "popular" radio station. All probably owned by ClearChannel too.

      I know people have been making arguments about perfect copies and such. But MP3s are lossy. And many of the songs are floating on P2P before the CDs are even released, so they were probably recorded off the radio anyways. Besides, I heard that most of the MP3s floating around P2P are only 128kbit/sec recordings anyways...

      • Re:Promising? (Score:2, Informative)

        by stratjakt ( 596332 )
        If I record a song/tv show off the radio or TV, then let a friend borrow and copy it, why this is illegal.

        It isnt.

        Let 1,000 friends borrow and copy it, you cross the line between personal use and distribution.

        • Re:Promising? (Score:5, Interesting)

          by DickBreath ( 207180 ) on Wednesday September 17, 2003 @03:45PM (#6988905) Homepage
          So why exactly is letting my 1 friend borrow a taped TV show "personal use" and letting 1000 friends borrow it not personal use?

          Where exactly is the line? 2 friends? 20 friends? 100 friends? The line needs to be clearly spelled out when we're talking about something being legal vs. illegal. Just imagine fuzzy speed limits. Or fuzzy amounts of weed that constitute "intent to distribute". This is the whole reason the judge doesn't accept arguments like "but I was only going 2 MPH through that stop sign, which was perfectly safe". And the next guy, "...but I was only going 3 MPH".

          Exactly why do you seem to believe that loaning a taped TV show to a friend is legal? Is there some chapter and verse of US law which says so? (i.e. an exception to the general mechanisms of copyright law.)

          So the original poster's question remains quite valid in my mind. Why is such a ridiculous thing illegal? Which reinforces my (many times repeated) statement that this whole nonsense about "Intellectual Property" is going to implode in upon itself.
        • I know damn well that I have not had 1,000 people download every one of my songs that I share. maybe 10 people and they let 10 people download from them. Frankly I havn't sent more then 50 a complete song in years, only fragments. So i'm liable for the actions of people who get the song from me?

          Really now...

          How is this different then radio stations broadcasting music to hundreds of thousands and 1,000 people tape it and share it with their friend? Radio stations who often even say that you should get your

    • Re:Promising? (Score:4, Insightful)

      by stratjakt ( 596332 ) on Wednesday September 17, 2003 @03:16PM (#6988661) Journal
      The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.

      Wow, judges doing their job? Handing down rulings based on law and precedent, rather than trying to legislate from the bench based on politics and personal agendas?

      I'm not shocked. These are District of Columbia judges, not Californias.

      Ginsberg doesn't seem to understand the difference in usability for the average user between an FTP site and a P2P file sharing network. Not that his comments are invalid, but certainly the scope is very different. How do we educate our judicial system?

      He understands it perfectly. FTP is not the super-hard 1337 h4x0r tool you think it is. It's dead simple.

      P2P is just FTP with a centralized list/searching tool.

      Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.

      What does that have to do with anything? The RIAA like anyone else has the right to sue in civil court to resolve grievances. This has nothing to do with criminal law enforcement. There's a big difference between a subpeona and a warrant, or a civil judgement and a fine.

      • Re:Promising? (Score:2, Insightful)

        by __aagmrb7289 ( 652113 )
        Hmmm... catch up please:

        1. Part of a judge's job is to determine whether a law is constitutional or not. Please take a Civics course.
        2. P2P is just FTP with a centralized list/searching tool. My point exactly. Please try to comprehend the issue before throwing your forehead against it. How much easier is it for people to use P2P than FTP? Well, for the reason you pointed out, the ease of use difference is significant.
        3. Sorry if you aren't following the news - I was referring to the "amnesty" that

    • Re:Promising? (Score:2, Insightful)

      by Planesdragon ( 210349 )
      The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.

      Has a defense lawyer put forth a reasonable notion that the DMCA is unconstitutional? Heck, have any of these cases gone against a defendant with the funds to pursue an appeal all the way to the Supreme Court?
    • there are some politicians listening to us, a little. And a republican!

      I agree with (what I take to be) your implication, it does seem intuitively surprising that a republican would come down on the side of individual/privacy. I think it's noteworthy that - as far as I can tell - democrats have acted outrageously with regard to privacy, drm, copyright, etc. Fritz Hollings being a prominent example, having authored the SSSCA. And guess who co-authored it: Dianne Feinstein. I've been paying attention t

  • pre-internet days (Score:5, Insightful)

    by Anonymous Coward on Wednesday September 17, 2003 @03:03PM (#6988562)
    how many of us in the pre-internet days went to the library to photo copy a text book for a paper and then after the paper was done threw out all the copies?

    is this copyright infringement???? probably.

    so drawing from this it seems like the RIAA is only interested in short term profit. i mean i use kazaa and i can never find a good selection of Carol King or Arthra Franklin songs. does the RIAA itself feel that their artist have no long term value????

    • Re:pre-internet days (Score:2, Interesting)

      by gatzke ( 2977 )
      I have heard fair use for copying out of a book is around 10% of the content. Handing out a chapter might be ok, but handing out copies of the entire book would be a bit much.

      Of course, you can get your indian friends (dots not feathers) to bring back LEGAL copies of $100 scientific texts that run for a couple of bucks in india. This is similar to DVD region encoding, but the cheap version is paperback on bad paper.
    • i mean i use kazaa and i can never find a good selection of Carol King or Arthra Franklin songs. does the RIAA itself feel that their artist have no long term value????

      What? These two sentences are non-sequiters. Not finding Carol King or Aretha Franklin on KaZaA has nothing to do with how the RIAA views the long- (or short-) term value of their artists. Not finding them in a CD store would, however, say much on the subject.

    • Re:pre-internet days (Score:5, Funny)

      by kawika ( 87069 ) on Wednesday September 17, 2003 @03:17PM (#6988666)
      i can never find a good selection of Carol King or Arthra Franklin songs

      That's because Kazaa doesn't have a filter that will find misspelled words. Carole King, Aretha Franklin. Go forth and plunder.
    • I'm pretty sure that there is a special clause in fair-use that allows a certain amount of copying for educational purposes. Another user mentioned 10%, which sounds about right. I also know that there is a 45-second rule for multimedia clips, though I doubt that any college students bothered to really check this for their presentations.

  • Brownback's Own Press Release (Score:5, Informative)

    by drpentode ( 586437 ) on Wednesday September 17, 2003 @03:04PM (#6988569)
    Also of note is a press release [senate.gov] from Sen. Brownback's own office. The press release also discusses the senator's plans for the digital TV broadcast flag.

  • Oh Canada! (Score:5, Funny)

    by grub ( 11606 ) <slashdot@grub.net> on Wednesday September 17, 2003 @03:08PM (#6988604) Homepage Journal

    Phew!

    I hope the appeals court rules in favour of the file sharers. The thought of all those American P2P evil-doers moving up here to Canada [slashdot.org] was scaring me.

  • Threats from the record industry side (Score:5, Interesting)

    by slavitos ( 666569 ) on Wednesday September 17, 2003 @03:10PM (#6988620) Homepage
    Perhaps, on a relevant note, yesterday's article in the "Internationa Herald Tribune" (reprinted from NYT) mentioned several reasons why these subpoenas may be counter-productive. One of them was that they will encourage people to move to more secure and anonymous networks (either Freenet-type or so-called "darknets").. It was interesting to hear the response to this argument from the "other side":
    "The thing about darknets is that the users show more culpability than people who simply use peer-to-peer," said Randy Saaf, chief executive of MediaDefender, a music technology company that does work for the record industry. "When people are found to be using them, they will face stiffer penalties".
    Now, from where I stand, this sounds like a threat. Also, I don't think there's any legal basis to threaten anyone with "stiffer penalties" simply for using a better technology to do the same thing.. What do you guys think?

    • Re: (Score:2, Interesting)

      by account_deleted ( 4530225 )
      Comment removed based on user account deletion
      • If I'm ever taken into court my defense is going to be that I can't tell what is out there as an expression of free speech and what is out there because someone ripped off someone else's copyright protected material.

        Ignorance of the law might not be a defense, but ignorance of the facts is.

        (Besides, I'd rather there was only stuff out there expressing people's free speech opinions. Let the copyright crap die in obscurity.)

        Band-of-the-week who?
    • and I don't use KaZaa et. al.. It's not that I wouldn't download and fileshare, but I'm too busy protecting my free speech rights to even keep up with Frost postings.

      Culpable? Me? Come here kitty, kitty.
    • Also, I don't think there's any legal basis to threaten anyone with "stiffer penalties" simply for using a better technology to do the same thing.. What do you guys think?

      I think the RIAA is signaling that in this sort of situation, they won't be willing to settle for the "small" amounts that they're currently settling for. I think under law they can claim damages far in excess of what their settlements have actually been. As some have pointed out, when you use a darknet and indicate you know what's goi

    • P2P programs like Kazza usually automatically find media on your drive, share it, and set themselves up to automatically load when you start your computer. I've seen a ton of students at the college I work at with Kazaa running in the system tray, and when I mention it to them they say they have no idea how to get rid of it.

      So I would say that there is more intent between someone with the knowledfge to be running Freenet or an FTP server than someone who can't figure out how to disable Kazaa from startu

  • The issue is ... (Score:5, Insightful)

    by JSkills ( 69686 ) <jskills.goofball@com> on Wednesday September 17, 2003 @03:13PM (#6988636) Homepage Journal
    ... that the RIAA is looking to circumvent standard legal prodedure by being able to determine the identity of someone they're interesting in suing for copyright infringement before actually filing the lawsuit. This is a privelege typically enjoyed by District Attorneys and the like - certainly not by a private firm looking to file civil suits. If someone is breaking the law, the path should be simple for them: file a lawsuit against them. If the person turns out to be a 12 year old girl or a grandfather, it really shouldn't matter to them. Justice is blind remember?

    What their tying to do is (a) use an aggressive interpretation of a new law to their advantage while (b) circumventing standard legal procedure for filing of civil suits.

    Throw in the fact that there is a related article on cnet [com.com] about how the RIAA is claiming that P2P networks are "rife with child porn" in order to make P2P seem like more of the devil's work.

    • RIAA is claiming that P2P rife with ch*ld porn

      Realistically, this is true. However, this is a half-truth due to omision, because if you s/P2P/the internet/ the statement still rings true. Hell, you could argue the same against the www protocol, but in the end it's not the fault of the protocol, just a portion of people using the net in general.

  • Legal Perspective? (Score:2, Interesting)

    by -Grover ( 105474 )

    All three members of the appeals court appeared to accept the RIAA's contention that peer-to-peer networks are rife with piracy. "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

    Maybe someone has answered this legitly elsewhere, but I would love it if there could be a little light placed on this question since IANAL.

    If P2P networks such as KaZaA (et. al) share files in a dir

    • Re:Legal Perspective? (Score:5, Funny)

      by El ( 94934 ) on Wednesday September 17, 2003 @03:30PM (#6988775)
      This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

      Hey! I know of a guy who made available over a million copyrighted works! His name is Andrew Carnegie, and he started this lending service called "The New York Library"! Maybe the RIAA should go after him, as he's obviously a notorious pirate!

      • "Hey! I know of a guy who made available over a million copyrighted works! His name is Andrew Carnegie, and he started this lending service called "The New York Library"!"
        • The difference is that each book can only be checked out by one person at a time. The irony is that virtually every library has a photo-copier available for use.

      • Hey! I know of a guy who made available over a million copyrighted works!

        I think you missed the important part here - a file on a P2P network is not available for borrowing, as items in a library are, but they are available for copying. When you download something it does not disappear from the hard drive of the person you got it from. Now, you could copy an item you borrow from the library, but the act of borrowing the item does not in itself create a copy of that item. Comparing P2P networks to libra

        • Re:Legal Perspective? (Score:3, Interesting)

          by El ( 94934 )
          And how is getting an electronic copy and promising "cross-my-heart!" that I'm going to delete it when I'm done with it really any different than borrowing a book from a library and promising I won't scan the whole thing in with my scanner into OCR software? Why do we take it as a given that just because digital information is easier to copy, it's subject to different rules? Art has always been subject to copying, and it always will be. For thousands of years, if your performed your song in front of another

  • RIAA has to connect ISPs to infringement... (Score:5, Interesting)

    by Not_Wiggins ( 686627 ) on Wednesday September 17, 2003 @03:23PM (#6988707) Journal
    It seems that the crux of this issue comes down to who's really infringing on the copyright.

    It boils down to how the RIAA is trying to obtain the names and if the ISPs are a participating member of the "theft."

    They have the right under the law to get the names of the offenders before they bring suit.

    This seems reasonable.

    They've chosen to go after the ISPs because they'd have the easiest (if only) way of identifying which people are the "thieves."

    HOWEVER, just because the RIAA has the right to go after the names doesn't automatically mean the ISPs have to give them up.

    I think this will boil down to deciding who is culpable in the pirating of music. If the RIAA can prove in court that the ISPs are actively infringing on the copyrights, then they'll be open to be sued to get the names of their "accomplices" (ie, Joe Downloader).

    However, if the RIAA can't connect the ISPs with the downloaders, then they might be SOL.

    It is a similar question faced by gun manufacturers. People would like to see them be liable (responsible) when someone dies from a gunshot wound. I believe it has been held up in court that simply providing the means to commit the crime *isn't* a crime when that wasn't the intention. Put more plainly, if the gun makers intended people to use the guns in crime, then they would be liable. However, since they provide guns for other legal uses, the fact that they can be used for evil isn't a strong legal point.

    To make the point more obvious, it would be like making car manufacturers liable when people use cars to run people over. Absurd, I think you'd agree.

    I'm hoping the courts will make the similar connection and stop the RIAA subpoenas. To this point, just because the ISP provides the network connectivity that makes P2P pirating possible, it wasn't the original intention. Hence, they aren't delivering a service for the purpose of supporting illegal activity... they're not directly culpable... so they should be able to tell the RIAA, "find your names on your own."
    • "To make the point more obvious, it would be like making car manufacturers liable when people use cars to run people over. Absurd, I think you'd agree."
      • Actually, it'd be more like the cops going to the DMV to get the identity of the registered car owner. The difference is that the DMV is a state entity while the ISP is a private entity. I hate the fact that the ISPs are being put in the middle of this, but if the COURTS decide that somebody's identity should be revealed, the ISPs are really the only ones
    • How often do you talk to someone on the phone and hear copyrighted music playing in the background? Clearly the phone networks are rife with piracy! SHould the phone company be made to detect music being played over the phone, and block it? Shouldn't the phone company report to the RIAA all customers that are using the phone network to illegally distribute copyrighted music? Isn't that exactly what the RIAA is asking the ISPs to do?

  • All three members of the appeals court appeared to accept the RIAA's contention that peer-to-peer networks are rife with piracy. "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

    Ever notice how Microsoft software tries to take over everything you do on the system, and do it for you... Kind of like a dictator... Seems like the judge is doing the same thing with the statement Is the

  • Wireless networks (Score:5, Interesting)

    by Transfan76 ( 577070 ) on Wednesday September 17, 2003 @03:24PM (#6988712)
    I've been curious how it's going to work with all these open wireless networks hanging around. if someone uses your wireless networks, unbeknown to you, and the RIAA comes after you for copyright infringement, can they hold you legally responsible? Since copyright infringment isn't a criminal offence, and from what I know, there is no law requiring me to secure my wireless network, how can I be held responsible for what some stranger did?

  • The sad thing is... (Score:3, Insightful)

    by DroopyStonx ( 683090 ) on Wednesday September 17, 2003 @03:31PM (#6988781)
    The vast majority of these Judges are uneducated when it comes to technology.

    You kidding me? I could walk up to any judge and ask him the difference between FTP and P2P and receive nothing but blank stares.

    Of COURSE the uneducated are easily manipulated. If you know nothing about cars and you take your car in to get the brakes fixed and they come back and make some BS story up about how your exhause pipe is cracked, how would you know if it's valid or not? The majority of people would just nod and accept that it needs to be fixed rather than checking the validity of the problem. Much like the RIAA is trying to sway judges by saying it's now a medium to trade child porn or whatever bullshit story they come up with.

    These people are making decisions on things they know NOTHING about. Why don't people question *that* instead?

  • counter claims? (Score:2, Insightful)

    by Anonymous Coward
    So say the RIAA takes me to court.. and I have a legal copy of every song that i downloaded .. and made them available for people who also had legal copies but didn't know how, or couldn't be bothered to rip/encode them so that they could have a copy.

    Could you then counter-sue the RIAA? I say we make a library of legal "loaner" cd's for people that they can purchase at the courthouse before trial for $0.01 per CD, just because it's a used cd, doesn't mean you have any less rights to the content on it.

    I'd
  • "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

    "This case is also about a corporation which wants to sue millions of people," GillBates0 said. "Is there any legitimate purpose for suing millions of people?"

    But what was the answer to that question, dammit! I'm dying to know.

  • Good McBride vs Bad McBride (Score:2, Funny)

    by Anonymous Coward
    Verizon lawyer Andrew McBride, a partner at Wiley Rein & Fielding, replied by saying that Verizon has inked deals with commercial services that sell music.

    Good McBride: We wants it. We needs it. Must have the $699. They stole it from us. Sneaky little thieves. Wicked. Tricksy. False.

    Bad McBride: No, no.

    Gollum: Yes, precious. False. They will cheap you. Hurt you. Lie.

    Good McBride: But filesharing is my friend.

    Bad McBride, ridiculing: You don't have any friends. Nobody likes you.

    Good McBride, hand

  • The problem is that copyrights are dead (Score:4, Insightful)

    by argoff ( 142580 ) on Wednesday September 17, 2003 @03:50PM (#6988959)
    I honestly think that the RIAA is out of controll and that copyrights are immoral, but either way these arguments are irrelavent. Right or wrong, good or bad - copyrights are effectively unenforcable on the internet. It is not a matter of if, but when the people backing them will simply run out of steam.

    They can make rules, laws, declarations, assertions, and in IMHO people can ask for the rest of time if people should respect copyrights, but when all is said and done - people can copy whatever they want, and they can more or less do it without any fear of retribution inspite of the occasional highly publisized wich hunt. Even now with all the lawsuits, and trading from publicly viewable IP addresses, the chances are still one in millions of being nailed. You're more likely to get ran over by a bus.

    Sure, if the gov randomly raids 10 million homes per year, and pops a bullet in the head of anyone who posesses unauthorized copyrighted materials on site without trial - then perhaps the copyright regime will be extended a few years longer, but lets get real - copyrights are really dead, and the RIAA, Microsoft, and even the government simply haven't faced that reality yet.

  • Bigger picture (Score:2, Interesting)

    by lurker412 ( 706164 )
    Isn't it beside the point whether the RIAA has to file a John Doe suit first? They certainly have the legal resources to do so. And the intent: the current subpoenas will be followed by lawsuits, or so they claim. Seems to me their methodology of identifying infringers is plausible enough that most judges would grant the subpoena if asked. So what will be different? I am uncomfortable with giving the RIAA the power of subpoena without judicial review, but so far, they have done nothing other than do wh

  • I'd like to subpeona.... (Score:3, Funny)

    by greymond ( 539980 ) on Wednesday September 17, 2003 @05:54PM (#6989880) Homepage Journal
    All the default-user@kazaa.com on ip range 64.1.1.1-64.255.255.255

    um.....?

  • "Is there any legitimate purpose for making av... (Score:5, Insightful)

    by Crusty Oldman ( 249835 ) on Wednesday September 17, 2003 @08:58PM (#6991027)
    "Is there any legitimate purpose for making available for copying 600 copyrighted works?"


    Yes. It's called a public library, and it's been one of the strengths of American society ever since Ben Franklin instituted the first one.

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