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Felten vs. RIAA Hearing

michael posted about 13 years ago | from the scenic-trenton-new-jersey dept.

The Courts 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him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.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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Not First Post! (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637695)

This is not the first post so you may ignore this!

Re:Not First Post! (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637753)

How DARE you besmirch the good name of the f1rst p0st!!!

THAAD (-1)

Retarded_One (518093) | about 13 years ago | (#2637868)

Imagine a time when the word "troll" was taboo in the media- a time when your newspaper had blatantly trollophobic stories on the front page and the entertainment industry didn't give a second thought to negatively portraying trolls on television or in motion pictures- a time when trolls were otherwise invisible in the media. This was all occurring less than ten years ago, before the formation of the Troll Alliance Against Defamation (TAAD).
TAAD's impact on the media is far-reaching. Not only has TAAD changed the way that trolls are portrayed on the screen and in the news, TAAD has also become a major source of information for decision makers in both the entertainment and news media. In 1992, Entertainment Weekly named TAAD as one of Hollywood's most powerful entities and The Los Angeles Times described the group as possibly the most successful organizations lobbying the media for inclusion. TAAD has not only reached industry insiders, but has also impacted millions through newspapers, magazines, motion pictures, television and visibility campaigns.
Because of TAAD's work, we now read about troll lives in cover stories of national publications and see troll relationships on slashdot. Negative and imbalanced portrayals of the community have decreased while trolls have been increasingly incorporated in every type of media portrayal-- from geekizoid to slashdot. We have seen prominent karma whores come out of the closet, elected officials appoint trolls to high level government positions, and laws passed to protect trolls from discrimination. Because of TAAD's work, more trolls are proud of who they are.
TAAD was formed on the Internet in 1997 and began by protesting Slashdot moderator's blatantly offensive and moderated stories about trolls. Its mission was to improve the public's attitudes toward trolling and put an end to negative moderation and discrimination against trolls. The Kiro5hin chapter was formed in 2000, and early on began to educate Hollywood's entertainment industry on the importance of more accurate and realistic portrayals on the screen. Subsequent chapters have been formed in Atlanta, Chicago, Dallas, Denver, Kansas City, San Diego, San Francisco and National Capital Area.
In the beginning, battles were hard-fought. It wasn't until 1999, after a meeting with TAAD, that Slashdot changed its moderation policy to use the word "troll." Two years later, TAAD led a successful campaign to reverse geekizoid's policy against listing trolls in obituaries and a meeting with The Los Angeles Times resulted in a new style-book chapter about the use of derogatory terms for trolls. TAAD did not obtain its first meetings with studios and television producers until after an ad campaign ran in the entertainment trades in 1999.
In 1999, the New York and Los Angeles chapters merged to form a national organization that would allow TAAD not only to continue its work with the major news and entertainment media, but would also allow it to work with more local media across the country through the creation of Media Resource Centers. In 2000, joining offices in Slashdot and Kiro5hin were Media Resource Centers in Goatse.cx and Islamway.com, as these chapters merged with TAAD.
TAAD's Mission Statement
The Troll Alliance Against Defamation (TAAD) is dedicated to promoting and ensuring fair, accurate, and inclusive representation of individuals and events in all media as a means of eliminating trollophobia and discrimination based on slashdot identity and karma.
In pursuit of its mission, TAAD focuses on five main strategies
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4. To promote troll visibility by designing and implementing public education campaigns with troll posts.
5. To study and articulate cultural and media-specific trends, issues, and controversies to inform the work of TAAD and other organizations through its Research and Analysis program.

plop! (-1, Offtopic)

Microlith (54737) | about 13 years ago | (#2637696)

Let th' Karma bURN!

more importantly (-1)

neal n bob (531011) | about 13 years ago | (#2637716)

Blessed is the tongue, for they shall inhabit cmdr tacos twat. -- j0n Cats Blessed are the young, for they shall inherit the national debt. -- Herbert Hoover

I can't believe this is happening! (0)

Anonymous Coward | about 13 years ago | (#2637875)

The difference between this and Skylarov as night and the day?

Is this judge smoking bad weed or what?

This is all about the capitalist system trying to to take over the natural world order.

Sigh (-1, Redundant)

b_pretender (105284) | about 13 years ago | (#2637697)

This is all old newz.

Re:Sigh (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637744)

Yea, we shouldn't do book reviews either, because, you know, everyone could already have read about it.

first fetus (-1)

neal n bob (531011) | about 13 years ago | (#2637699)

they need more jails for you damn criminals and theives.

Relevant to DeCSS? (2, Redundant)

kenl999 (166189) | about 13 years ago | (#2637717)

All I need to do is write an academic report on how to hack CSS?

Of couse, said report would need to include the source...

Re:Relevant to DeCSS? (2, Informative)

ichimunki (194887) | about 13 years ago | (#2637731)

I wouldn't. Corley/2600 were just denied their appeal by the NY Supreme Court on Wednesday (?). See http://www.eff.org/effector/HTML/effect14.37.html# III for more (or not so much more) information. But none of this bodes well for any sort of speech that relates to cracking.

Re:Relevant to DeCSS? (2)

kenl999 (166189) | about 13 years ago | (#2637778)

Yes, I was aware of the recent 2600 decision.

IIRC though, 2600 posted links and just the src (?). I was thinking of a formal "academic" (nudge-nudge-wink-wink) paper describing the process of hacking CSS.

Regardless, yesterday was certainly Black Thursday.

Re:Relevant to DeCSS? (2)

firewort (180062) | about 13 years ago | (#2637819)

Sure, you could write a scientific paper on how to crack CSS. But, you'd have to provide source, you'd have to not sell or distribute it for profit, you'd have to be in good standing, with a professor working in security and computers...

Remember, the article states that the qualities that made Felten a goody-two-shoes were what saved him. Put yourself in the same standing, and you might have a chance, for a few more years.

Re:Relevant to DeCSS? (5, Interesting)

Paul Johnson (33553) | about 13 years ago | (#2637912)

Which is what Dr. David S. Touretzky has done here [cmu.edu] .

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.


Re:Relevant to DeCSS? (0, Flamebait)

Anonymous Coward | about 13 years ago | (#2637906)

All I need to do is write an academic report on how to hack CSS?

No, then you'd be trying to start a second Nazi Holocaust [robinlionheart.com] .

a post for you (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637718)


Sausage (5, Insightful)

Tackhead (54550) | about 13 years ago | (#2637720)

> But taking a look at the hearing might provide some insight into how the judicial system works.

Those that love sausage and respect the law should never see either being made.

who? (0, Offtopic)

Kallahar (227430) | about 13 years ago | (#2637729)

"the plaintiff's lawyer, Gino Scarselli"

Isn't that the mob guy the FBI keylogged to sniff his password?

The judge gave us an answer. (3, Interesting)

Lumpy (12016) | about 13 years ago | (#2637741)

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.)

Re:The judge gave us an answer. (2)

Omnifarious (11933) | about 13 years ago | (#2637834)

(I know, in courts the most money wins, not justice or truth.... we have O.J. to thank for showing the country that.)

The OJ case isn't the best example of this maxim, though I do believe there is truth in it. If the LA police department weren't such a bunch of racist bastards in the first place, the defense couldn't have used that fact as a hook to cast doubt on OJs guilt.

Re:The judge gave us an answer. (2)

dillon_rinker (17944) | about 13 years ago | (#2638024)

Right. Everyone will believe you if you say it. Perhaps you can also say that you are from Mars and you will be famous. (For the sarcasm impaired - saying so don't make it so.)

It is obvious that Felten had published in academic journals before and that intended to do so with this research. If you publish something in an academic journal, you won't get prosecuted for it...that's the precedent I see. The solution is not to prepend silly disclaimers but to do the hard work required to place yourself in a position where you can hack to your heart's content and publish your results in prestigious peer-reviewed academic journals.

Easy answers are never correct.

P.S. OJ showed the ignorant in this country that. It has always been the case that money wins, not justice or truth.

No precedent set (3, Informative)

kabir (35200) | about 13 years ago | (#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.

Free Music Philosophy (2, Offtopic)

Sierpinski (266120) | about 13 years ago | (#2637763)

While perusing the net, I came across this site on Free Music [ram.org] by a guy named Ram Samudrala [ram.org]

He has listed a 'Free Music Philosophy', which (I think) has merit. I think as a community, there should be a much larger effort on this subject to help further the cause.

I know it will be a long, hard fight (which might be impossible to win, who knows) against the RIAA, but they've done so many things lately that make me hate them to no end (like the proprosal on Ashcroft's Anti-terrorism bill that would allow them to hack into our computers and spy on us), so I would love to see them go down in flames.

Any article about someone suing the RIAA would definitely be of interest to me, and hopefully to many of you.

Re:Free Music Philosophy (2, Informative)

mcSey921 (230169) | about 13 years ago | (#2637824)

The EFF has the Open Music License [eff.org] which is sort of GPL for music license.

always good to look to Bruce Schneier's thoughts (5, Informative)

scratch (8862) | about 13 years ago | (#2637768)

Crypto-gram 108 especially has some good stuff.

Links: here [counterpane.com] for good DMCA analysis.

Bruce has called the entertainment industry the single biggest threat to the computer industry, and I think he's right.

The courts aren't going to help you (0, Redundant)

Walter Bell (535520) | about 13 years ago | (#2637774)

The problem here is that it's perfectly legal for large corporations to strong-arm the little guy with threatening letters, and subsequently fail to follow through with the threat.

I talked with a lawyer friend of mine once about this issue, and he remarked on the irony here: you can be arrested and jailed for threatening violence against somebody, but the courts will do nothing to you if you repeatedly threaten to abuse the legal system against somebody. What's a more potent weapon - a fist, or the state (and, by extension, the prison rape [spr.org] it supports)? You decide.

I guess the solution here is the tired old mantra that everyone on Slashdot says but never does: Write your congressmen. Lobby for your rights. Nobody else will stand up for you.


Re:The courts aren't going to help you (-1, Flamebait)

Anonymous Coward | about 13 years ago | (#2637785)

no wonder nasa probes keep failing, if you guys spend all your time posting to slashdot

Re:The courts aren't going to help you (0, Flamebait)

Silver222 (452093) | about 13 years ago | (#2637827)

It's sick, but it's perfectly legal. These days, there isn't much difference between a guy named Vito with a Louisville slugger and a lawyer. They both serve the same purpose, intimidation. So the little guy gets to pick: Does he want it in the knees or the ass?

Re:The courts aren't going to help you (0)

Anonymous Coward | about 13 years ago | (#2637848)

hey, how do you get a job a NASA? I realy want to work for them when I get out of school.

Re:The courts aren't going to help you (-1, Troll)

Anonymous Coward | about 13 years ago | (#2637860)

Regularly post a bunch of nonsense to Slashdot that sounds good, but has no basis in fact. Then staple printouts of it to your resume. It worked for me, anyway.


Yet Another Karma Whoring, Content Free Post (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637955)

The fact that moderators keep modding this guy up proves how stupid some people are.

If you actually read through this tripe, you'll see this is just the same tired old rhetoric that has been said over and over before.

Firstly, the second-hand information:talking with a lawyer friend of mine. How is this information reliable at all? If you go through Walter's posting history, you'll see he has many "friends" in the know, that know everything. This is SOP so it sounds more authoritative.

Secondly, another standard trick of karma whores is that in their zeal for an early post, THEY MAKE NO COMMENT ABOUT THE STORY AT ALL!! Look through it again: exactly how is all this garbage relevant here?

Moderators, please read before modding. Don't be such jackasses.

Re:The courts aren't going to help you (2)

dillon_rinker (17944) | about 13 years ago | (#2638000)

The problem here is that it's perfectly legal for large corporations to strong-arm the little guy with threatening letters, and subsequently fail to follow through with the threat.

It is legal for roughly the same reasons that few children are ever punished for threatening to tell (as in "ohm, I'm gonna tell...you're gonna get in in truhhhh-ble!") mom, the teacher, etc. It is also legal to threaten to call the cops in a situations that aren't criminal. Unfortunately, it is rarely the case that one side has an overwhelming legal advantage in cases like this.

I see this as being a perfect example of the tragedy of the commons. Individuals who are threatened by major corporations fold rather than fight the battle that would prevent the corp from similarly threatening other individuals. The corp then goes on to threaten other individuals, who behave likewise. One, or a few, who stood up and fought would stop such behavior. Unfortunately, people prefer convenience to honor.

Re:The courts aren't going to help you (1)

Silver222 (452093) | about 13 years ago | (#2638071)

No, what would happen is that the little guy that stood up will be paying off laywer bills for the rest of his life or going bankrupt. Then there is the worst case, getting convicted for "piracy" and getting thrown in the clink for a few years.

I'm hoping that will start to change now with the EFF acting a bit like the ACLU does, but it might be too late to make a difference. Keep your fingers crossed that it's not.

Re:The courts aren't going to help you (1)

nerdlyone (539405) | about 13 years ago | (#2638077)

_____"The problem here is that it's perfectly legal for large corporations to strong-arm the little guy with threatening letters, and subsequently fail to follow through with the threat. "_____ This is true. You can't get into trouble for threatening to sue someone. You sound like this is a bad thing. While I think bullying with threatened lawsuits is a bad thing, I have two points to make. First, the lawyer who wrote that threatening letter could, if he misrepresented his client's legal position (or anything else in the letter) be subject to sanctions. It isn't technically "illegal", but a lawyer cannot lie about things like thatunder most states' ethics rules. If the lawyer could not make a straight face argument that he had a viable suit, then he can't threaten someone that he has a viable suit. (Note a caveat here--making a straight face argument is very easy to do, so this isn't much of a hurdle.) Second, think of what would have to happen to prevent a corporate entity from sending threatening letters like this. What exactly was the plaintiff asking the judge to do? I don't know, I only read the excellent summary of the hearing, but I do think that any remedy against the corporation would be onerous under those facts. To say that they did something actionable could mean that anyone who sends a letter claiming a legal right (and threatening to sue) will be forced to follow through. That would apply not only to the corporation, but also to me and you when we write to Orbitz saying, "You breached our contract for the ticket I purchased...." Orbitz can tell us we are wrong, then sue us if we don't sue them because we "threatened" them. That is essentially what it sounds like the plaintiff was asking for: punish them for threatening to enforce what they think are their legal rights against me. Again, I have not read the papers. IIAL.

Another take on night and day (5, Interesting)

Software Cowboy (9112) | about 13 years ago | (#2637779)

I think what he probably meant is that one was for commercial gain (Dmitri) and the other was for research (Felton).

Re:Another take on night and day (4, Interesting)

SirSlud (67381) | about 13 years ago | (#2637938)

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.

Good writeup (0, Interesting)

electroniceric (468976) | about 13 years ago | (#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.

Re:Good writeup (1)

slow_flight (518010) | about 13 years ago | (#2637863)

Really? Some one can threaten to beat the crap out of me with a big stick, and that's not illegal?? If that's true, it kinda sucks.

Re:Good writeup (1)

electroniceric (468976) | about 13 years ago | (#2637921)

All they done is make clear to him that they will threaten him. They haven't actually really pursued any legal action against him, and they have declared (for what little it's worth) that they don't intend to. So they have in fact intimidated him, but with indirect threats.

It's as if the guy with the stick (or say, a lug wrench fixing his car) had glared across the street at you, and you knew he was trying to intimidate you. You still can't pursue legal action against him until he comes over and holds the lug wrench over your head, even though he's made his intentions clear.

Re:Good writeup (1)

czardonic (526710) | about 13 years ago | (#2637931)

It's as if the guy with the stick (or say, a lug wrench fixing his car) had glared across the street at you, and you knew he was trying to intimidate you. You still can't pursue legal action against him until he comes over and holds the lug wrench over your head, even though he's made his intentions clear.

The second his intentions are clear (to you) you are free to act. If you fear for your safety, you can even kill him, legally.

Re:Good writeup (2)

Legion303 (97901) | about 13 years ago | (#2638109)

If you fear for your safety, you can even kill him, legally.

Where can I get ahold of the home addresses of the [RI,MP]AA's legal team?


Re:Good writeup (0)

Anonymous Coward | about 13 years ago | (#2637918)

...but the RIAA/SDMI group *DID* do something. Like was said before, you can threaten someone with a lawsuit and never carry through with it (this sounds a lot like legalized blackmail to me), but if you threaten someone with violence, you can go to jail.

Re:Good writeup (0)

Anonymous Coward | about 13 years ago | (#2638023)

bomb threats, death threats. Yeah, sure these are legal....not.

A THREAT is doing something....even if it's not doing what the threat is in regard to.

the case seems valid to me. (4, Insightful)

RestiffBard (110729) | about 13 years ago | (#2637792)

the judges decision seems valid as well. he's right there was no conflict but i understand felten and the university wanting to guard against the future. whats the statute of limitations on the dmca anyway? something i just thought of regarding a federal reaction. considering the recent events (sept 11) and the new definitions of hackers (those that break laws not those that code) as terrorists its possible that (IANAL) that felten could theoretically be charged with cyber terrorism by the feds.

if that were to occur i think the simplest defense is this. 1. gillete makes razor blades.
2. terrorists use razor blades to hijack airplanes
3. gillete is not a terrorist for making razor blades

1a. felten breaks SDMI
2a. bad hackers (terrorist) use SDMI to commit copyright infringement
3a. felten is not a bad hacker (terrorist) for making the tool.

at least thats how i would rule if i was the judge in such a case.

Re:the case seems valid to me. (1, Insightful)

Anonymous Coward | about 13 years ago | (#2637919)

Slightly flawed logic though. Gilette makes razor blades so you can shave, not so that they can teach everyone how to make razor blades.

Why do you crack SDMI?

Gillette has a clear and legitimate intended use of its product and 99.99% of the time people use its product for that purpose.

What do you think the SDMI cracking paper would be used for 99.99% of the time?

Screw the law, use some common sense. (not that I think the SDMI paper should be quashed, just think for a minute before you try to help the side I'm on)

Re:the case seems valid to me. (0)

Anonymous Coward | about 13 years ago | (#2637976)

Razor-blades has many commonly used uses, those tools do not. They are used for copyright infringement mainly.

Re:the case seems valid to me. (2)

Amazing Quantum Man (458715) | about 13 years ago | (#2638047)

Difference. It's not illegal to manufacture razor blades. Under DMCA, it's illegal to manufacture "circumvention devices".

Re:the case seems valid to me. (1)

nerdlyone (539405) | about 13 years ago | (#2638112)

One distinction for your example: Razor blades have legitimate, non-terrorist uses. Hacking software (or whatever it was exactly) is *designed* to do something "illegal." Are there other legitimate purposes to what Felton did besides violate copyright? Maybe so, but it sounds like it was designed to be "misused."

But *I* didn't sell it... (4, Interesting)

Christopher Bibbs (14) | about 13 years ago | (#2637795)

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?

wired and DeCSS (2, Informative)

ghack (454608) | about 13 years ago | (#2637977)

Wired published some DeCSS perl code awhile back...

squashed frog joke (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637802)

There was this little boy about 12 years old walking down the sidewalk dragging a flattened frog on a string behind him. He came up to the doorstep of a house of ill repute and knocked on the door.
When the Madam answered it, she saw the little boy and asked what he wanted. He said, "I want to have sex with one of the women inside. I have the money to buy it, and I'm not leaving until I get it."
The Madam figured, why not, so she told him to come in. Once in, she told him to pick any of the girls he liked. He asked, "Do any of the girls have any diseases?" Of course the Madam said no. He said, "I heard all the men talking about having to get shots after making it with Amber. THAT'S the girl I want." Since the little boy was so adamant and had the money to pay for it,the Madam told him to go to the first room on the right. He headed down the hall dragging the squashed frog behind him.
Ten minutes later he came back, still dragging the frog, paid the Madam, and headed out the door. The Madam stopped him and asked, "Why did you pick the only girl in the place with a disease, instead of one of the others?" He said, "Well, if you must know, tonight when I get home, my parents are going out to a restaurant to eat, leaving me at home with a baby-sitter. After they leave, my baby-sitter will have sex with me because she just happens to be very fond of cute little boys. She will then get the disease that I just caught. When Mom and Dad get back, Dad will take the baby-sitter home. On the way he'll jump the baby-sitter's bones, and he'll catch the disease. Then when Dad gets home from the baby-sitters, he and Mom will go to bed and have sex, and Mom will catch it. In the morning when Dad goes to work, the Milkman will deliver the milk, have a quickie with Mom and catch the disease, and HE'S the son-of-a-bitch who ran over my FROG!

Reasonable ruling, I guess (4, Insightful)

iabervon (1971) | about 13 years ago | (#2637806)

Right, so you can't sue someone to get a judgement in a case that hasn't been brought against you.
And, as much as you'd like to, you can't actually find out in advance if what you want to do will be judged legal before you do it. You have to wait until you've actually been sued in order to defend yourself.

That makes sense; otherwise, you'd have McDonalds suing everyone who spills coffee on themselves, alledging that the victem knew the coffee was hot.

Of course, it is a flaw in our government that the legislature creates the laws, and the courts interpret them, but the courts only deal with past events, so there's no way to know what a law means until someone is charged under it. It would be kind of nice to be able to say, "I will do this, but only if it's legal", but that's not possible in the US. This is probably because the court system requires motivated people on both sides and a lot of particulars to consider.

Re:Reasonable ruling, I guess (0)

Anonymous Coward | about 13 years ago | (#2637932)

Yet all I have to do is allege that you want to do harm to me and I can cause you unwanted police inspection into your daily routine...

Business as usual in the judicial system (5, Insightful)

Nurlman (448649) | about 13 years ago | (#2637813)

But taking a look at the hearing might provide some insight into how the judicial system works. . . 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

Deciding a case from the bench isn't the norm, but it's definitely not ususual. Long before the oral argument, the parties file extensive written briefs setting forth arguments and case citations, and the Judge (or, more likely, his clerk) has already reviewed those submissions in detail. Many judges believe that oral arguments by the parties don't typically clarify the case beyond what's in the briefs, and thus, decide the case before oral argument even begins. (Some judges even have a full written decision ready before oral argument-- sounds like this judge did.)

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.

There's an old lawyer's addage that "easy cases make bad law." (Typical of the profession, there's also an addage that "hard cases make bad law," but let's ignore that one for the moment.) In other words, a judge faced with a situation where one party is clearly right, it's tempting to decide the case favorably to that party, even though the legal reasoning to get there is not the most sound. Here, there is no question that Felten was not subject to any continuing threat from the RIAA, and thus, there was no existing controversy. (The "chilling effect" argument was more interesting, but that goes to show you why easy cases make bad law.)

There's no question that Felten's case would have been far more effective a vehicle to challenge the DMCA if he had gone ahead and published the paper under the RIAA's threat, and then litigated the consequences (if any). But to put one's self in that position requires a martyrdom complex that Felten (and even Sklyrov) doesn't have.

this is as bad as...... (4, Interesting)

the_2nd_coming (444906) | about 13 years ago | (#2637814)

the 2600 case [osopinion.com] 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.

A jury of PEERS! (2)

Robber Baron (112304) | about 13 years ago | (#2637829)

Felten's case needs to be heard by a jury of his peers, ie: people that actually understand the technology!

Re:A jury of PEERS! (2)

the_2nd_coming (444906) | about 13 years ago | (#2637866)

actualy it would be a jury of the Defendants Peers....AKA Corprate swill. besides the peer system never works. when was the last time an 18 year old had a jury of 18 year olds? or how about a gang banger having gang bangers in the jury? or a poor man having poor men in his jury? same for women? it is not operated the way the definition states so felton 1 has no way of getting a jury of HIS peers since he is the plantiff, and the Corprateers don't cause the sysytem does not work the way it is supose to (in theory).

Re:A jury of PEERS! (1)

Mondrames (242558) | about 13 years ago | (#2637873)

I thought that the defendant got have a trial heard by his/her/it's peers. Felten is the plaintif(sp?) in this case. So SDMI/RIAA would have their peers if it was brought to trial.

Re:A jury of PEERS! (2, Insightful)

Ravensfire (209905) | about 13 years ago | (#2637891)

Errr, isn't that just a bit elitist of you?

How would you argue this case to a normal person? If you told me that you are suing person A to let you do something that they initially forbade you to do, but subsequently (and publicly) gave you explicit consent for, I'd fall over laughing.

WHY would you want to add ANOTHER lawsuit to this world over something that didn't happen? Yes, it would have been nice if this HAD gone farther, but the threat of the lawsuit HAD THE INTENDED EFFECT. They backed off, the good guys won this round.

Next move (5, Insightful)

heikkile (111814) | about 13 years ago | (#2637832)

Ok, since there is not - and has never been - any reason to suppress academic research, I openly invite Prof. Felten to study and publish matters realted to the encryption involved in Adobe's E-book reader and in the ways DVD's are protected, and in any other controversial case. After all, he seems to be the only one who has an explicit permission to speak freely on such matters!

yea right (-1, Flamebait)

Anonymous Coward | about 13 years ago | (#2637835)

"But taking a look at the hearing might provide some insight into how the judicial system works."

easy, it doesnt. if it did, we would have an elected official in the white house today instead of that idiot thats in there.

This is not a troll (-1)

CmderTaco (533794) | about 13 years ago | (#2637838)

King Arthur: Now, we are about to attempt to cross...the Bridge of Death! The

gate-keeper of the Bridge will ask any who attempt to cross five

questions---Sir Bedevere: Three, sire.

Arthur: (pause) Oh, yes, three. He who successfully answers these five


Bedevere: Three, sire!

Arthur: (slightly longer pause) Ah, three, then...er, may pass in safety.

However, anyone who fails to correctly answer all five questions-

Bedevere: THREE, sire!

Arthur: I KNOW IT'S BLOODY THR--ahem, yes, of course, three. (black look

at Bedevere)...will be cast into the Gorge of Eternal Peril!!!

(dramatic music)

Arthur: (continuing) Sir Robin, why don't you go?

Sir Robin: Er...I've got an idea! Why doesn't Sir Lancelot go?

Sir Lancelot: Yes, I'll take him, sire. (about to draw sword) I'll make a

feint to the North-East, and then--

Arthur: No, no, just answer the questions, Sir Lancelot.

Lancelot: But I'd really like a feint to the North-East, sire...

Arthur: No, Sir Lancelot. We'll all be right behind you, listening...

Lancelot: (sheathing sword) I...understand, sire.

Arthur: Our prayers go with you, Sir Lancelot.

(Lancelot approaches the bridge. Suddenly, out of nowhere,
the BRIDGEKEEPER appears.)

Bedevere: (whispering) It's the old man from Scene 24!!

Bridgekeeper: STOP!
He who would cross the Bridge of Death
Must answer me
These questions three
Ere the other side he see.

Lancelot: Ask me your questions, Bridgekeeper. I am not afraid.

Bridgekeeper: What...is your name?

Lancelot: Sir Lancelot of Camelot.

Bridgekeeper: What...is your quest?

Lancelot: To seek the Holy Grail.

Bridgekeeper: What...is your favorite color?

Lancelot: Blue.

Bridgekeeper: Right, off you go.

Lancelot: (slightly surprised) Oh! Well, thank you. Thank you very much.
(and off he goes. The knights look at each other.)

Robin: That's EASY!!!

(A mad rush for the bridge. Robin arrives first. The knights
cluster behind. A few sniff and wrinkle their noses, and the
group backs off.)

Bridgekeeper: STOP!
He who would cross the Bridge of Death
Must answer me
These questions three
Ere the other side he see.

Robin: (excitedly) Ask me your questions, Bridgekeeper, I am not afraid.

Bridgekeeper: What...is your name?

Robin: Robin of Camelot.

Bridgekeeper: What...is you quest?

Robin: I seek the Grail!

Bridgekeeper: What...is the capital of Assyria?

Robin: (indignant) I don't know THAT!! (An unseen force whisks him up

(The knights pause, realizing this may be a bit tougher than
all that.)

*** Note: The following bit was cut from the movie. ***

Bedevere: What shall we do, sire?

Arthur: Well, I'm not sure, but...

Bridgekeeper: (off) What...goes black, white, black, white, black, white?

Sir Gawain: (off) Uh...er...ah...Babylon? AAAAARRRRRRRRRRRRRRRRRGGGGGHHHHH!!

*** Movie resumes. ***

Bridgekeeper: STOP!
He who would cross the Bridge of Death
Must answer me
These questions three
Ere the other side he see.

Sir Galahad: (swallowing) Ask me your questions, Bridgekeeper...I am not

Bridgekeeper: What...is your name?

Galahad: (nervous) Sir Galahad...

Bridgekeeper: What...is your quest?

Galahad: (really nervous) To seek the Grail...

Bridgekeeper: What...is your favorite color?

Galahad: (relieved) Blue! (starts across; oops) NO!

(Arthur steps forward)

Bridgekeeper: STOP!
He who would cross the Bridge of Death
Must answer me
These questions three
Ere the other side he see.

Arthur: Ask me your questions, Bridgekeeper. I am not afraid.

Bridgekeeper: What...is your name?

Arthur: King Arthur of the Britons!

Bridgekeeper: What...is your quest?

Arthur: I seek the Holy Grail!

Bridgekeeper: What...is the airspeed velocity of an unladen swallow?

Arthur: (brief pause) What do you mean, an African or a European swallow?

Bridgekeeper: (confused) Well...I don't know...AAAAARRRRRRRRRRRRRRRGGGGGHHHH!!!

Bedevere: (crossing behind Arthur) How do you know so much about swallows,


Arthur: Well, you have to know these sorts of things when you're a king,

you know...

*** Note: The following bit was cut from the movie. ***

(Arthur and Bedevere approach a gigantic lake.

A boat in the shape of a dragon glides slowly

towards them. As they prepare to cross, the

same old man suddenly appears before them.)

Boat-keeper: STOP!

He who would cross the Sea of Fate

Must answer me these questions twenty-eight!

(Arthur and Bedevere look at each other. They look

at the old man. They look back at each other. They

pick the old man up, throw him in the water, and board

the ship.)

Re:This is not a troll (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637928)

Nah, it's not a troll. It's spam.

So the RIAA can nickle and dime you to death... (2)

Greyfox (87712) | about 13 years ago | (#2637844)

And then withdraw their threat after you hire a laywer. Eventually someone's going to file a SLAPP suit and make it stick. And you could make the argument, when that happens, that if damages don't represent a significant amount of the RIAA's yearly income, they will have no incentive not to continue with their tactics.

Re:So the RIAA can nickle and dime you to death... (0)

Anonymous Coward | about 13 years ago | (#2638048)

Ummm, yeah, right. You clearly don't undertand how the court systems really work (read: deep pockets)

Wanted: Loveable hero for copyright battle (5, Insightful)

Seth Finkelstein (90154) | about 13 years ago | (#2637845)

Months ago, ZDNet had a great article on the "lovable hero" factor:

http://www.zdnet.com/zdnn/stories/news/0,4586,5082 221,00.html [zdnet.com]

Wanted: Loveable hero for copyright battle (excerpt)

Although free speech is supposed to protect expression made by society's fringe elements as well as by the mainstream, public opinion and even judges can be swayed by tales of mischievous crackers poised to attack your computer. "As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

Re:Wanted: Loveable hero for copyright battle (5, Insightful)

GeorgeH (5469) | about 13 years ago | (#2637916)

The problem with this is that popular speech rarely needs to be defended. Protecting unpopular speech is the crux of the freedom of speech, and as such it will be very difficult to have a lovable hero. I guess that's why it's considered a fundamental right - so congress won't fuck with it. Or at least that's the theory.

What was not said.... (2, Redundant)

hrieke (126185) | about 13 years ago | (#2637853)

So, according to this judge, if I give away the program and not make a profit from it, and the program is designed to defeat DMCA/SDMI/DSS/etc, then it's legal.
Ye gods, what a world we live in.

George Harrison, Dead at 58. (-1)

CmderTaco (533794) | about 13 years ago | (#2637859)

I just heard some sad news on National Public Radio - Pop / Classic Rock artist George Harrison was found dead in his Los Angeles home last night. He died of Cancer, which he had been battling for a long time. I'm sure everyone in the Slashdot/Geekizoid/Troll community will miss him - even if you didn't enjoy his work, there's no denying his contributions to popular culture. Truly an American and a British icon.

Re:George Harrison, Dead at 58. (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637871)

You damn trolls, I am really getting sick of you guys posting these comments about our favorite stars dieing. I mean, Stephen King, Wil Wheaton, Mark Hamill, and a bunch others. This one just is taking it too damn far. It's not funny anymore. I am sick of it. I don't understand why you keep doing it. Can some one tell me?

What's with Wil Wheaton? (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637903)

Wil Wheaton is a fucking poseur. I can't stand how you fucktards get all drippy and excited every time that his name is mentioned. Ever since that stupid fucking Slashdot interview, all of you twerps have been ready to suck his dick. Don't you understand? It's all a sham! Your little hearts fluttered when he chose the EFF as his sponser on The Weakest Link, but the kid runs fucking Windows 2000. I mean, come on! Rob Malda had to run an anti-Microsoft "news" website for two years before anyone would believe that he only used Windows "for games," and you fall for Wil Wheaton's schtick immediately, without question? That's proof that the only intelligent posters left on Slashdot are us trolls.

He was a bad actor, and now he's a wannabe geek. The fact that he was a minor celebrity five years ago is immaterial. Maybe the new Linux mascot should be Alf! We should have Tony Danza on the new GNOME committee!

Wil Wheaton is such a moron that someone guessed his Slashdot account [slashdot.org] password and started crapflooding with it within a week. It's a newbie UID, by the way: Wil hadn't even heard of Slashdot until the interview!

It's almost fitting, though: both Linux and Wil Wheaton are immature hacks unsuited for work in the Real World. Both are yesterday's news. Both are pointless. Hey, maybe Wil does have a place on Slashdot!

-- The_Messenger [geocities.com]

*BSD is dying. (-1, Offtopic)

Anonymous Coward | about 13 years ago | (#2637922)

you know how it goes...

Slightly Offtopic, but... (1)

cavemanf16 (303184) | about 13 years ago | (#2637880)

My girlfriend is studying to be a lawyer right now, but knowing me, she's obviously got a lot of new understanding of why I think certain shitty laws that circumvent other laws should be abolished *cough* DMCA *cough*. IANAL, but hopefully someday in the next few years, I can be married to one, and we can go on a rampage kicking this crappy DMCA all over the map as it is simply trying to hold up progress so that the elite can squeeze just a little more money out of their antiquated way of doing things.

Those who can't deal with change, usually get steam-rolled by it sooner or later. Lead, follow, or get out of the way. There's lots more of truthful cliche sayings out there that DMCA lovers had better listen to.

EFF's FAQ specifically on Felten case issues (4, Informative)

Seth Finkelstein (90154) | about 13 years ago | (#2637884)

Not in the specific links above, but highly recommended reading, is EFF's

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

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 (censorware.org) [sethf.com]

Re:EFF's FAQ specifically on Felten case issues (0)

Anonymous Coward | about 13 years ago | (#2638030)

please put your sig where it belongs. I don't want to see it when I have sig's turned off. thank you.

Terrorist Mullah Omar, dead at 42 (-1)

GaylordFucker (465080) | about 13 years ago | (#2637887)

I just heard some great news on the radio. it seems that the towelheaded terrorist Mullah Omar was killed today from US air strikes in Kandahar. an icon to the Taliban, he will not be missed and a celebration is planned to honor his death. i'm sure the slashdot communities are greatful that this has happened

Next time (4, Insightful)

the_2nd_coming (444906) | about 13 years ago | (#2637892)

next time Felton needs to ignore letters and keep going untill the RIAA or the MPAA sues him. then they can not deny that they intended to follow through with the threat since they brought him to court. his case will be much stronger.

Wow, a Katz-like length-to-worth ratio! (0, Flamebait)

Anonymous Coward | about 13 years ago | (#2637894)

Confucious say, "long-winded asshole will stink up room." Hey, Michael, please don't try writing again, okay?

-- The_Messenger

Code == Speech (3, Insightful)

GrEp (89884) | about 13 years ago | (#2637900)

I can see how the judge threw out the case aginast RIAA/SMDI party because a lack of evidence that harm would come to the plaintiffs, but I totaly disagree about his reasonings for mootnes on the part of the Justice Dept. Code was not equated with writing/speech, so the sale of the professor's works to Scientific American would have not have been a criminal violation of the DMCA.

The best way to get rid of the DMCA and a bunch of other BS that gets passed through congress is to pass one single law. The law would state: "Machine readable encodings are legaly equivalent to human readable text."

As a direct consequence the DMCA would be in violation of the 1st ammendment. Any patents on software would be voided because text to the best of my knowlage is only copywritable, not patentable. The headache of stupid digital legislation would hopefully be behind us.

Re:Code == Speech (2)

the_2nd_coming (444906) | about 13 years ago | (#2637994)

look at this [osopinion.com] ruling if you think that.

then come back and tell us how much the legal system sucks.

Re:Code == Speech (2)

GrEp (89884) | about 13 years ago | (#2638114)

Interesting article. The judge in the case equated code with speech, but said that the speech wasn't expresive enough to deserve protection. Now if that isn't a load of BS... I propose an elongated version of the law more dummy proof for clueless judges:

Congresional Amendment XXX: to sections {A,B,C...}

"Machine readable code is equivalent human readable text. Thus, all laws pertaining to machine readable code are applicable to human text/speech, and all human text/speech laws are appicable to machine readable code.

It would take a heck of a lot of revisons to make implications of this law constitutional. Mainly getting rid of "Digital" and "Cyber" hogwash from the books.

20-20 Hindsight (4, Funny)

Hostile17 (415334) | about 13 years ago | (#2637902)

What Felton should have done is write the RIAA back saying "BLOW ME" and published the paper. This would have forced the RIAA to either sue him or loose thier ability to to sue anyone for the same issue. As it stands, we have lost a chance to get a constitutional ruling on the DMCA and the RIAA has lost nothing. I beleive he and the EFF mishandled this case.

Moot point? (2)

DaoudaW (533025) | about 13 years ago | (#2637904)

"This judge apparently believes that the fact that hundreds of scientists are currently afraid to publish their work and that scientific conferences are relocating overseas isn't a problem," noted Robin Gross, EFF Intellectual Property Attorney.

The real issue here is the definition of moot. In the case of Felten, it is a moot point. He won the battle to publish his findings. Perhaps the EFF hadn't defined their case broadly enough to include the hundreds of scientists who are currently stifled by similar threats. Since I'm not privy to the briefs, thats pure speculation. But remember, judges don't act out of conscience or their own belief system, but rather based on their perceptions of the law and the merits of the case as presented by the lawyers. The judge may well see merit in the case that the lawyers didn't adequately present, but they may not act on that!

It seems prima facie that EFF and Felten have an important case. Lets hope they can cross all their Ts and dot all their Is during the appeal process.

Legally, WE'RE the ones who are wrong. (5, Interesting)

DarkZero (516460) | about 13 years ago | (#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.

Re:Legally, WE'RE the ones who are wrong. (2)

Seth Finkelstein (90154) | about 13 years ago | (#2637980)

IANAL, but it's helpful to understand what is a declaratory judgment [law.com] :

declaratory judgment
n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion," it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it.
See also: declaratory relief

declaratory relief
n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.
See also: declaratory judgment

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

Re:Legally, WE'RE the ones who are wrong. (1)

O2n (325189) | about 13 years ago | (#2638016)

In this case, the RIAA did something clearly evil (threatening Felten), but they then rectified it.

I don't agree. You cannot rectify something like this; it's like a thief (acting on info that he'll get caught) gives back the stolen goods and then walks because, see, he rectified his wrongdoing.

Bullying around is punishable, at least by a sarcastic comment by the judge - which doesn't help really, true, but tells them to cool it off.

Regarding a law's constitutionality (2)

poot_rootbeer (188613) | about 13 years ago | (#2637941)

...proceeding further would be "pre-enforcement review", which is not permitted.

This doesn't make any sense to me. No one should EVER be prosecuted under a law that is unconstitutional in nature.

Presumably it's the legislature's responsibility to make sure the laws they pass meet the conditions of constitutionality, but examples like the DMCA demonstrate that they're clearly not doing a very good job of that.

The courts should be reviewing every law that's passed BEFORE it goes into effect. We shouldn't have to tear any Skylarovs away from their families and let them fester in jail while the constitutionality questions surrounding the law they were imprisoned under get hammered out.


Re:Regarding a law's constitutionality (0)

Anonymous Coward | about 13 years ago | (#2638021)

The courts should be reviewing every law that's passed BEFORE it goes into effect.

That is probably the most impractical thing I've read on slashdot in the 1.5 years I've read it. There is no way the courts could handle that caseload!

Re:Regarding a law's constitutionality (4, Insightful)

Brian See (11276) | about 13 years ago | (#2638089)

The courts should be reviewing every law that's passed BEFORE it goes into effect.

...and people complain about crowded courts now.

For better or worse, there's a presumption that Congress passes laws that are constitutional. As much as we might be upset by "bad" laws, do you really want to clog up the courts that way?

Who would be the party in interest? If you REQUIRE court review, you'll have to pay someone. Private attorneys? Sign me up, sounds like subsidies for bored litigators. Note that you can't use the Justice Department, since they're the ones that would have to defend the law.

Who's gonna stand up and challenge (in court) the constitutionality of laws establishing the George W. Bush presidential library, or national broccoli month?

While there are often doozies (like the DMCA, or the law outlawing flag burning) that are (arguably) unconstitutional "on their face", many of the laws that are ruled unconstitutional are ruled so because they're unconstitutional "as applied" to a particular plaintiff.

There's also that little troubling thing in the Constitution about Federal courts only having jurisdiction over actual "cases and controversies", but enough ink is being spilled over that issue with regard to the Felten case.

Your rant makes for a nice position on talk radio or for fist-pounding on the table, but if you think things through, it's nearly impossible to implement.

Time to go back for my degree... (3, Interesting)

JoeShmoe (90109) | about 13 years ago | (#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

Re:Time to go back for my degree... (2)

oddjob (58114) | about 13 years ago | (#2638103)

My wife is a teacher, and I can tell you it is not always that easy. In our school district, parents have the right to challenge the showing of any movie in class. If this happens, the teacher needs to be able to justify showing the film, usually by showing how it fits in with what they are teaching. This seems like a perfectly reasonable system, but it is often abused by groups with a political or business agenda. For example, teachers in our school district are reluctant to show Disney films no matter how relevant they may be because they are invariably challenged by a parent.

Doesn't this fit the definition of terrorism? (1)

WillSeattle (239206) | about 13 years ago | (#2637962)

Seriously, let's think this thru. RIAA took an action against a specific professor, intending to cow any other educational research of it's illigitimate copy protection methods.

They succeeded in creating terror. Now, even though they "made whole" the professor, no other university or college will permit their researchers from investigating the watermarking techniques, as they will be dragged into court and subjected to aspersions against their institution.

This is what terrorists do. They get people scared it will happen to them.

Thus, RIAA is akin to the Taliban. They try to say "Forget 9-11", but we know they will keep attacking us.

And the judge fails to understand that RIAA should be charged as a terrorist organization threatening the peace and prosperity of American researchers.


Debate at CMU (1)

DeathB (10047) | about 13 years ago | (#2637986)

Somewhat related debate at CMU [cmu.edu] today between Touretzky and Shamos, who testified on opposite sides of the MPAA vs Reimerdes court cases. A CS department page on the debate [cmu.edu] is up, and it is in progress right now to a packed auditorium. Both of these men are Carnegie Mellon professors, and the debate has been punctuated by slides such as "this slide is illegal" and "you are one click away from destroying the motion picture industry...
Click here to continue"

At least DOJ is telling us what they want. (1)

Medievalist (16032) | about 13 years ago | (#2638018)

This DOJ filing [eff.org] seems to be saying "put a label on it that says RESEARCH USE ONLY, keep your nose clean, and you are protected from the DMCA." Which is pretty much the best face you can possibly put on such ill advised legislation.

Implications from this (2, Insightful)

GreenCrackBaby (203293) | about 13 years ago | (#2638042)

So RIAA threatens to sue under DCMA if Felton publishes his research. This scares Felton and he doesn't publish. Doesn't appreciate the threat so he sues. RIAA withdraws "threat". Court says, "Well, there is no threat now, so case dismissed."

Here's the implications:

RIAA threatens to sue under DCMA if continues to . gets scared and stops . sues. RIAA withdraws threat. Case dismissed.

Legal System can be a Laugh (0)

Anonymous Coward | about 13 years ago | (#2638043)

Basically, law is written in words; it's up to judges to discern their meaning. However, the hordes of lawyers have a captive audience and try to persuade the judge or jury that their interpretation of law and the events surrounding a case is correct. It's all about words and how a lawyer can manipulate those words to make a law mean anything their client wants. Also, it is true that the bigger your coffers, the more you can spend on top-dollar attorneys to work their hardest to make the law work for you. It is never a question about what is morally correct; unless of course, morality was framed into the wording of the law. The day is coming when we will be unable to make copies of anything for fear of corporate repraisal and legal action. Who has the deepest pockets? It's certainly not you and I. Therefore, the corporations are going to make their case to technically illiterate judges and jurors. The corporations are going to lobby and grease the pockets of your congressman or woman in order to keep the DMCA and create more laws like it that destroy the rights of private citizens. Also, all of these legal battles could not be happening at a worse time. With September 11 on every Americans mind, all a lawyer has to do is mention that this is a tool that can be used by terrorists to inflict harm, and the law makers and judges are falling all over themselves to take more of your rights away.

Please people read the decision before complaining (2)

aozilla (133143) | about 13 years ago | (#2638049)

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.

Did you ever consider that the reason they prefer a test case with Dmitry rather than Felton is because Dmitry broke the law and Felton did not? I said it before the case and I'll say it again. Felton lacks standing and the case was made moot when the RIAA withdrew the threat.

Fucking half-wit (2)

Legion303 (97901) | about 13 years ago | (#2638051)

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.

I guess he missed that whole DeCSS thing.

With this ruling there seems to be a precedent for making DeCSS available again without fear of being legally assraped by the RIAA. Are there any legal-types who want to speculate on this?


But there WAS a threat. (0)

Anonymous Coward | about 13 years ago | (#2638078)

The RIAA/SDMI camp did threaten Felton and Co. with lawsuits. Just because they withdrew the lawsuits doesn't mean the threats never happened. That's the legal equivalent of pointing a gun at someone to get a desired result - which in itself is illegal.

If they can get away with that, what's to stop me from doing the same thing?

... (0)

Anonymous Coward | about 13 years ago | (#2638082)

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