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RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
Saturday, December 20 2003 @ 08:46 PM EST

There was a case decided on Friday by a federal appeals court, the U.S. Court of Appeals for the District of Columbia, that is so significant in its implications, at least to my reading, that I thought it worthwhile to explain it in detail. This is the second case I've seen now where someone tried to use the DMCA for a purpose not intended by the legislators and in both cases it has now failed. Verizon brought a Motion to Quash in the RIAA v. Verizon case, and the order Friday granted Verizon's motion.

If you click on Law.com's dictionary and type in "quash" you will find out it just means this:

to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as 'quashing' service of a summons when the wrong person was served.
In this case, it's a subpoena that is now quashed.

It isn't every day you read a judge write that a party's argument "borders upon the silly", but that is exactly how the judge here characterized one of the RIAA's arguments. In short, he wasn't even close to being persuaded, despite recognizing what he viewed as the seriousness of the situation faced by the RIAA in trying to stop file trading.

Because SCO has mentioned copyright lawsuits and the DMCA in the same breath, it's also a good idea if we all get very familiar with the law and how it is supposed to work. The best way to understand a law, in my experience, isn't to read it, although it's a good first step. The way to understand it is to read what the legislators said they meant and then to read the cases to see how judges have interpreted it.

This case, RIAA v. Verizon, is such a clear explanation of one particular section of the DMCA, I think you'll enjoy learning by reading it.

The court has, with this ruling, made it much harder for the RIAA to go after copyright infringers. They can't just get a clerk to sign a subpoena, send it to an ISP and get a subscriber's name, so they can go after the person. Because of this ruling, they'll have to take a different route, as I understand it, filing a "John Doe" case first, asking the court to tell them who the person is, which it may or may not agree to do. The RIAA will have to persuade the judge of two things: that they have a meritorious case and that they need to out the person instead of suing them as John Doe. If they succeed there on both prongs, then they can get the person's name and sue the alleged infringer by name.

It's far more expensive than a simple DMCA subpoena. Alternatively, they can try to pass a new law that gives them the powers they seek. According to Senator and songwriter Orrin Hatch, the father of our Mr. Hatch, Brent Hatch, one of the lawyers for SCO in the SCO v. IBM case, there will be a push now in Congress to write a law that does what the RIAA wants. Still, it's more uphill for the RIAA now, and they are going to have to spend more time and money to take this to the next level. They can't just serve a clerk-issued subpoena on an ISP, get the names of infringers, threaten to sue and work out a deal with the terrified mothers of 12-year-old girls any more. There will be judicial oversight of the process. It's a major setback to the RIAA in its battle against file traders.

Those are the facts of the case and its implications, but the details are more interesting, to me, anyway, than the conflict between the RIAA and file sharers. Just as a programmer can find it very interesting to work on a challenging project for a boring company that makes the same widget all day long and nothing more stirring than that or even enjoy coding for a company he doesn't much like, so in the legal field the arguments are more interesting to those in the field than what the case happens to be about. Sometimes there is a dovetail of both. Making new law is what litigators live for. And Verizon just got a judge to fine-tune our understanding of the subpoena provisions of the DMCA's Section 512. Copyright law's landscape just experienced a bit of an earthquake. 1

The RIAA wanted Verizon to turn over the names of some of its customers who, the RIAA said, were illegally sharing music using P2P software like Kazaa. Verizon didn't want to do that. They lost in a first scuffle in the lower court, but they bothered to take the time and trouble and spend the money to appeal. Some unknown, to me, attorney at Verizon (the company's attorney is Sarah Deutsch) had a legal brainstorm. It's the kind of brainstorm that changes the whole playing field. And whoever it is, I salute him or her or them. I also admire this court for the careful analysis given to the arguments and for understanding the brainstorm argument and accepting it.

The impression I have formed is that some in the legal community have been viewing the DMCA as a handy "quick and dirty" way to get what they wanted for their clients, using the geek meaning of quick and dirty. It was quick, cheap and easy. And that is exactly what made it so likely to be abused, according to critics of the strategy. Verizon saw the issue in just those Constitutional, free speech terms, and more:

Verizon's lawyer, Sarah Deutsch, called Friday's ruling "an important victory for all Internet users and all consumers." She said the music industry should be required to file traditional civil lawsuits -- which are more expensive and time consuming -- to prosecute downloaders.

"Consumers' rights cannot be trampled upon in the quest to enforce your copyright," Ms. Deutsch said.

Let me state that I don't personally download music, unless I have paid for it. I always try to keep the law, whatever it is, if only because it's my field, and that isn't the only reason. I believe in obeying laws, with the only exception being the kind that might get you prosecuted in a Nuremberg court or before the Almighty for violations of his laws. That isn't something that usually comes up in the normal course of events, usually never in a person's lifetime. And this ruling isn't saying that the RIAA has no right to protect its copyright interests. But the DMCA and the way it was being used raised Constitutional questions in my mind. This judge, Chief Judge Douglas Ginsburg, although he seemed sympathetic to the RIAA's perceived problem with file traders, just couldn't see the DMCA as having been written to solve that particular problem. He refused to pretend that it did. And he refused to bend the law to suit the circumstances.

This is what I love so much about the law. You hear nasty lawyer jokes all the time, I know. So do I. And when there are decisions in a court that people don't like, it's not unusual to hear some cracks about the judge and the legal system. But my view is that these folks are what stand between us and chaos, between us and the bully process, whereby special interests grab whatever they want at the expense of everyone else, based on money and power. The parties naturally fight for what they perceive to be in their best interest. But judges are supposed to look at the bigger picture and to consider the impact on the general public as well. Frankly, they sometimes seem to be the last ones in the scheme of things still reliably looking at anything but the bottom line. Decisions are sometimes disappointing, but now and then, a judge stands up and says: we have a rule of law here, and no matter who you are, no matter how much money you have, no matter how powerful your friends are, here in my courtroom, the law is applied fairly and without partiality. When you see it happen, it's a beautiful sight.

Judges don't do what they do for the money. They make an OK living, but there are easier ways to make money, lots more money than a judge will ever see, if he or she is honest. They do it because they love the law and the protections it is meant to provide to everyone, they love finding the balance, the attempt to decide fairness, the interplay between private interests and Constitutional guarantees, the opportunity to figure out what the framers of the Constitution and the lesser laws had in mind in the first place. The US legal system is based on the fundamental principle that when you go to court, it ought to actually be justice that you get. There has always been an idealism built into the country's judicial branch that moves my heart.

Judges are supposed to be the implementers and real-world fine-tuners of the decisions the legislators make. In this case, that is exactly what happened. A judge would have liked to rule differently, probably, all things being equal, but he noticed a detail in the DMCA, thanks to Verizon's brilliant attorney(s) and his own reading of the legislators' stated intent, and he couldn't get around what he saw. That is the the rule of law, where you accept what it says, regardless of personal feelings, out of respect for the process.

And one other thing: if there is one thing people invariably resent, it's paying legal fees. But bear in mind that you are paying someone to think creatively for you, and that does take time. You can't do a good job without taking the time to research and really think things through in great detail. The more you pay your lawyer, the more he will do that for you. The less you are willing to pay, the less time he or she will be able to devote to that very necessary part of the whole. What you are paying for is not only their prior knowledge of the law, not just to have them show up in court for you. You are paying them to think about the law and how it applies to your situation. It takes time to do that well.

Here, Verizon's legal team thought very well indeed. It takes time and a background in a particular field to know what might make a difference in a case, and then it takes courage to put the idea forward, particularly if it's a new idea that has never prevailed in a case before, maybe never even been tried before. They did exactly that, and despite amicus briefs by the US [PDF] and the Department of Justice [PDF], Verizon won. If I had come up with the arguments Verizon put forward, I'd be happy for the rest of my life just thinking about it and remembering it and bragging to my grandkids someday about it. Let's take a look at the ruling [PDF].

First, you need to read the DMCA, Section 512, because Verizon makes detailed arguments based on various sections of that law. So go here to read Section 512 of the DMCA. The DMCA itself is here, as a PDF from the Library of Congress, if you are interested, and here it is as html. Some information explaining it can be found here on EFF's site and on the Association of Research Libraries site, and the RIAA has a page, DMCA Subpoena Fact Sheet that explains their position. But the DMCA's Section 512(h) is what you need to read to understand this case. Section 512(h) is the section of the DMCA that makes it possible to serve subpoenas on ISPs to force them to disclose the names of internet users; 512(c)(3)(A) is the takedown notice. Here is Google's page explaining the notice of infringement process. And here is ChillingEffects Clearinghouse's FAQ explaining how to counter such a notice. If you follow the process and file a counternotice, the ISP can put your materials back up and then it's up to the copyright holder to bring an action within 14 days. Here is the exact language of the DMCA's Section 512(h):

(h) Subpoena To Identify Infringer. -
(1) Request. - A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

(2) Contents of request. - "The request may be made by filing with the clerk -

(A) a copy of a notification described in subsection (c)(3)(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.
(3) Contents of subpoena. - The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

(4) Basis for granting subpoena. - If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

(5) Actions of service provider receiving subpoena. - Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

(6) Rules applicable to subpoena. - Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

This, then, is what looked so simple and appealing to the RIAA. No need to even ask a judge's permission to obtain the subpoena. Just file with the court, and presto! You are in business. The ISP has no choice but to comply. Or so they thought.

But Verizon said, Wait just a minute, here. We are an ISP. In the case of file traders, with Kazaa and that type of file trading arrangement, there is nothing stored by us. We provide internet access only. We can't be in the business of regulating what people do with their own computers, just as we can't be responsible for what they say in email, which we merely transmit.

The RIAA said, Oh, Your Honor, this Section 512 is part of the entire Section and we have the right to demand that they just hand over the names and we'll do the rest.

Verizon noticed a detail that had escaped notice before. Section 512(h), they argued, does not authorize the issuance of a subpoena to an ISP that merely transmits infringing material but does not store it on its servers. The RIAA argued Section 512(h) authorizes the issuance of a subpoena without regard to whether the ISP is acting as a conduit for user-directed communications. The judge decided from both the terms of Section 512(h) and the overall structure of Section 512(h) that, "as Verizon contends, a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity."

If you take the time to follow the judge through the details of his decision, you'll see why I love the law so much and find it so endlessly intriguing. Here, then are some excerpts from the decision. I'm hoping to eventually put up the US and DOJ briefs as well. In the meanwhile, the entire case archive is available on EFF's site.

Because SCO began its saga by stating it explicitly intended to follow the RIAA's M.O. and hinted we might even see a government amicus in their case in support of their position, it is probably time to read and understand what their position is. Or, I might more accurately say, was. This case has altered what anyone's position can legally be, no matter how hot emotions are on either side. Here are some of the judge's careful reasons for why he ruled the way he did and I hope you find it as fascinating as I do:

On appeal Verizon presents three alternative arguments for reversing the orders of the district court: (1) Section 512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others; if the statute does authorize such a subpoena, then the statute is unconstitutional because (2) the district court lacked Article III jurisdiction to issue a subpoena with no underlying 'case or controversy' pending before the court; and (3) Section 512(h) violates the First Amendment because it lacks sufficient safeguards to protect an internet user's ability to speak and to associate anonymously. Because we agree with Verizon's interpretation of the statute, we reverse the orders of the district court enforcing the subpoenas and do not reach either of Verizon's constitutional arguments. . . . .

When Verizon refused to disclose the name of its subscriber, the RIAA filed a motion to compel production pursuant to the Federal Rule of Civil Procedure 45(c)(2)(B) and Section 512(h)(6) of the Act. In opposition to that motion, Verizon argued Section 512(h) does not apply to an ISP acting merely as a conduit for an individual using a P2P file sharing program to exchange files. The district court rejected Verizon's argument based upon "the language and structure of the statute, as confirmed by the purpose and history of the legislation," and ordered Verizon to discloseto the RIAA the name of its subscriber. In re Verizon Internet Servs., Inc., 240 F.Supp.2d 24, 45 (D.D.C. 2003) (Verizoon I).

The RIAA then obtained another Section 512(h) subpoena directed to Verizon. This time Verizon moved to quash the subpoena, arguing that the district court, acting through the Clerk, lacked jurisdiction under Article III to issue the subpoena and in the alternative that Section 512(h) violates the First Amendment. The district court rejected Verizon's constitutional arguments, denied the motion to quash, and again ordered Verizon to disclose the identity of its subscriber. In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 247, 275 (D.D.C. 2003) ( Verizon II ).

Verizon appealed both orders to this Court and we consolidated the two cases. As it did before the district court, the RIAA defends both the applicability of Section 512(h) to an ISP acting as a conduit for P2P file sharing and the constitutionality of Section 512(h). The United States has intervened solely to defend the constitutionality of the statute. . . .

The issue is whether Section 512(h) applies to an ISP acting only as a conduit for data transferred between two internet users, such as persons sending and receiving email or, as in this case, sharing P2P files. Verizon contends Section 512(h) does not authorize the issuance of a subpoena to an ISP that transmits infringing material but does not store any such material on its servers. The RIAA argues Section 512(h) on its face authorizes the issuance of a subpoena to an "[internet] service provider" without regard to whether the ISP is acting as a conduit for user-directed communications. We conclude from both the terms of Section 512(h) and the overall structure of Section 512(h) that, as Verizon contends, a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity. . . .

Infringing material obtained or distributed via P2P file sharing is located in the computer (or in an off-line storage device, such as a compact disc) of an individual user. No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable" access to the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.

The RIAA contends an ISP can indeed "disable access" to infringing material by terminating the offending subscriber's internet account. This argument is undone by the terms of the Act, however. As Verizon notes, the Congress considered disabling an individual's access to infringing material and disabling access to the internet to be different remedies for the protection of copyright owners, the former blocking access to the infringing material on the offender's computer and the latter more broadly blocking the offender's access to the internet (at least via his chosen ISP). . . . These distinct statutory remedies establish that terminating a subscriber's account is not the same as removing or disabling access by others to the infringing material resident on the subscriber's computer.

The RIAA points out that even if, with respect to an ISP functioning as a conduit for user-directed communications, a copyright owner cannot satisfy the requirement of Section 512(c)(3)(A)(iii) by identifying material to be removed by the ISP, a notification is effective under Section 512(c)(3)(A) if it "includes substantially" the required information; that standard is satisfied, the RIAA maintains, because the ISP can identify the infringer based upon the information provided by the copyright owner pursuant to Sections 512(c)(3)(A)(i)-(ii) and (iv)-(vi). According to the RIAA, the purpose of a Section 512(h) being to identify infringers, a notice should be deemed sufficient so long as the ISP can identify the infringer from the IP address in the subpoena.

Nothing in the Act itself says how we should determine whether a notification "includes substantially" all the required information; both the Senate and House Reports, however, state the term means only that "technical errors . . . such as misspelling a name" or "supplying an outdated area code" will not render ineffective an otherwise complete Section 512(c)(3)(A) notification. . . . Clearly, however, the defect in the RIAA's notification is not a mere technical error; not could it be thought "insubstantial" even under a more forgiving standard. The RIAA's notification identifies absolutely no material Verizon could remove or access to which it could disable, which indicates to us that Section 512(c)(3)(A) concerns means of infringement other than P2P file sharing.

Finally, the RIAA argues the definition of "[internet] service provider" in Section 512(k)(1)(B) makes Section 512(h) applicable to an ISP regardless what function it performs with respect to infringing material -- transmitting it per Section 512(a), caching it per Section 512(b), hosting it per Section 512(c), or locating it per Section 512(d).

This argument borders upon the silly. The details of this argument need not burden the Federal Reporter, for the specific provisions of Section 512(h), which we have just rehearsed, make clear that however broadly "[internet] service provider" is defined in Section 512(k)(1)(B), a subpoena may issue to an ISP only under the prescribed conditions regarding notification. Define all the world as an ISP if you like, the validity of a Section 512(h) subpoena still depends upon the copyright holder having given the ISP, however defined, a notification effective under Section 512(c)(3)(A). And as we have seen, any notice to an ISP concerning its activity as a mere conduit does not satisfy the condition of Section 512(c)(3)(A)(iii) and is therefore ineffective.

In sum, we agree with Verizon that Section 512(h) does not by its terms authorize the subpoena issued here. A Section 512(h) subpoena simply cannot meet the notice requirement of Section 512(c)(3)(A)(iii).


1 As it happens, on Friday the Dutch Supreme Court ruled that Kazaa cannot be held liable for copyright infringement of music or movies swapped on its free software, upholding an earlier appellate-court verdict dismissing a Dutch equivalent of the RIAA's suit against Kazaa.

[Note: This article was updated in 2009 to fix broken links, which in some cases required finding alternative contemporaneous resources. In 2004, Groklaw published an interview with Sarah Deutsch about this case, which might also interest you.]


  


RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings | 181 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
John Doe
Authored by: babazaroni on Saturday, December 20 2003 @ 09:26 PM EST
I believe the RIAA can still compel an ISP to identify a particular file sharer.
But, they have to file a suit against a 'John Doe' first, instead of just
asking for names first.

[ Reply to This | # ]

Hurray! A step in the right direction
Authored by: rejiquar on Saturday, December 20 2003 @ 09:40 PM EST
``...violates the First Amendment because it lacks sufficient safeguards to
protect an internet user's ability to speak and to associate anonymously''
Well, well, well. Not only do Verizon's legal term deserve kudos, but so does
this court.

I heard about this case yesterday on NPR, and thought of suggesting it as a
topic. I'm so glad to see you pick up on this, PJ, because though (as an
artist) I don't know diddily about SCO, except what I've read on Groklaw of
course:), I think the DMCA and the Sonny Bono copyright act (aka Dizzy
protection act) are *terrible* laws.

Wouldn't it be great if we could do something about them? More effective than
boycotting the music and film industries---not only do I not make copies, I'll
hardly buy them either, I'm so disgusted. Perhaps we have a window of
opportunity to make a difference, as you have with SCO v. IBM?

---
sylvus tarn
rejiquar works

[ Reply to This | # ]

Text of court's decision
Authored by: Thomas Frayne on Saturday, December 20 2003 @ 09:56 PM EST
The complete text of the court's decision is here.

[ Reply to This | # ]

  • MCBRIDE? - Authored by: JMonroy on Sunday, December 21 2003 @ 02:35 AM EST
    • MCBRIDE? - Authored by: Anonymous on Sunday, December 21 2003 @ 03:33 AM EST
      • MCBRIDE? - Authored by: Anonymous on Sunday, December 21 2003 @ 07:06 AM EST
RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
Authored by: Anonymous on Saturday, December 20 2003 @ 10:00 PM EST
I hate to see the riaa case compared to scox's case. there is a huge difference
- linux is supposed to be free, music is not.

scox clauns that linux downloaders, are the same as those who illegally download
music. scox is working hard to confuse two very different situations. scox has
made much of the public believe that scox owns linux, and those who download
linux are stealling from scox.

I hate to help scox confuse the two cases.

[ Reply to This | # ]

RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
Authored by: mac586 on Saturday, December 20 2003 @ 10:17 PM EST
When I heard this ruling yesterday, I knew it was very important. The broad access to supoena that RIAA was seeking via the DMCA legislation is harrowing.

"No matter what information the copyright owner may provide, the ISP can neither 'remove' nor 'disable' access to the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers."

I know this legal stuff is difficult to grasp, but please reread PJ's summary, and try to understand the significance of the paragraph I quoted above.

Now imagine it is SCO vice the RIAA, and Linux vice MP3s. In a world turned upside down, SCO could follow the RIAA's abuse of DMCA and identify, by IP, computers running operating systems SCO claims infringed upon their copyrights.

SCO could not only supeona the ISPs serving those computers, they could demand that the infringing computers be disconnected.

What a great extortion racket! SCO could demand licensing fees up front, with the legal threat of disconnecting a company's storefront, email server, VPN, etc. citing the DMCA and the precedent established by the RIAA.

Asking McBride and company about this ruling, and how it affects their assumptions about their legal strategy, is one for the upcoming news conference. It is a well placed torpedoe: below the waterline and centered on the ammo hold.

[ Reply to This | # ]

The DMCA's Wings...
Authored by: the_flatlander on Saturday, December 20 2003 @ 10:35 PM EST
Thank you, PJ, I really enjoyed your work. I find your report moving and
inspiring. Thank you for taking the time to extract the heart of the ruling and
present it to us. Usually, I find those too tedious to wade through.

There are few things in life more undemandingly pleasurable than watching a
professional do what they do with style and grace. Watching Michael Jordon play
basketball was like that, and reading your essays is like that, too.

TFL

[ Reply to This | # ]

COX Cable DMCA takedown notification message....
Authored by: jmccorm on Saturday, December 20 2003 @ 11:08 PM EST
Imagine that Jim Bob is running his own FTP server. Or maybe is hooked into a
P2P network. A company finds something that they think is theirs, and sends a
DMCA takedown notification to their ISP.

Their ISP receives it, and sends a letter out to the specific subscriber at the
given IP address (at the given time). It starts out like this...

We are writing on behalf of Cox Communications to advise you that we have
received a notification that you are using your Cox High Speed Internet service
to post or transmit material that infringes the copyrights of a complainant's
members. We have included a copy of the complaint letter. Pursuant to the
provisions of the Digital Millennium Copyright Act ("DMCA"), which
is codified at 17 U.S.C. § 512, upon receiving such notification, Cox is
required to "act expeditiously to remove, or disable access to" the
infringing material in order to avoid liability for any alleged copyright
infringement. Accordingly, Cox will suspend your account and disable your
connection to the Internet within 24 hours of your receipt of this email if the
offending material is not removed.

...so how does COX know either way if the offending material is removed or not?
It isn't on their servers, which fits in nicely with the story above. COX is
acting as a go-between in giving a DMCA takedown notification, but this isn't
their issue at all. They are not hosting the file and they're just acting as a
common carrier. And why must they be required to cut off a customer's access
based on that complaint? They're not even involved.

Imagine, for example, giving a DMCA takedown notification to your favorite
telephone company (say, SBC), because someone used part of the Friends
television show's theme in their answering machine. Why would SBC be required
to act as a go between here? Should they then turn around and threaten to cut
off their customer if they don't remove their answering machine message?

Well, at least from this perspective, the judicial ruling makes a good deal of
sense.

[ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Saturday, December 20 2003 @ 11:23 PM EST
    Before we get too happy about what this means to SCO's future
    RIAA-style plans, remember that the content SCO is complaining about is
    the kind of content commonly stored on the server, not so much shared
    peer-to-peer. Of course, they wouldn't need a subpeona anyway
    because Linux contributors are identified publicly.

    On the other hand, the RIAA actually made some pretty good arguments
    and clearly showed much more reasonable logic than what we've seen
    from SCO, and the judge still called them silly. Imagine the comments
    we'll hear from judges as the SCO case winds through the courts.

    Verizon's victory seemed a little like a loophole. RIAA can't subpeona
    under 512(h) because of the requirements of 512(c). Not that I'm on the
    RIAA's side (or SCO's). I think those clods are killing the goose that lays
    the golden eggs. Casual copying and sharing of copyrighted material
    controlled by the RIAA has been going on for a very long time, and it's
    always proven beneficial to the recording industry in the past. Yes,
    peer-to-peer on the internet is much more massive in scale than making
    cassettes for a few friends, but there still remain many good reasons
    why a music lover would want to buy the real thing after sampling it off
    the internet, despite the RIAA's attempts to alienate those music lovers.
    Better quality, liner notes and artwork, support for the artists, etc. It's
    been reported that the music industry is playing the other side of the
    fence by monitoring peer-to-peer activity by song title and location, and
    using focused advertising to increase sales of that song in those
    locations where trading of that song is heavy. It's clear the music
    industry is well aware of the beneficial effects of music sharing, and use
    it to their benefit where they can. There's no reason for me to believe
    that the net effects of peer-to-peer music sharing on the recording
    industry's bottom line are anything but positive. I believe there are at
    least as many new sales generated by the free exposure provided by
    peer-to-peer as there are sales lost due to the free availability.

    I still buy music occasionally, though I am not happy with the RIAA's
    bullying ways. I go out of my way to try to buy music from non-RIAA
    labels. I can envision a reaction to the RIAA's tactics similar to Richard
    Stallman's reaction to proprietary software: a future where musicians
    control their own work and freely share it under a GPL-style license just
    like OSS developers do, allowing you to download it for free or buy it on
    CD for a small charge, and also allowing you to provide copies to others.
    There are many ways musicians can benefit from this. One way that
    might not be so obvious to a musician, but is second nature to an OSS
    developer, is the collaboration effect. Writing music and lyrics is a
    creative process much like software development. There are lots of
    ways to say the same thing. Imagine having an idea for a song, putting
    out a skeletal demo of it online, and having others add their lyrics and
    musical ideas to it, resulting in the next #1 song. There's no reason to
    believe that open-source style music development couldn't outperform
    the
    record-label's-hotshot-producer-tells-the-band-how-to-sound-and-what-to-say
    method the recording industry likes so well, just like the open-source
    software development model can often outperform proprietary methods.

    Will open-music be the next big thing? I don't know, but one thing seems
    clear: when the middleman gets too greedy, it's time to cut him out.

    [ Reply to This | # ]

    Translation and Theoretical Response
    Authored by: jmccorm on Saturday, December 20 2003 @ 11:26 PM EST
    A DMCA takedown notification must be delivered to the DMCA registered agent of an ISP. For example, here is Slashdot's DMCA agent registration. It must be for an item that is located on their servers.

    In the case of an individual subscriber who is hosting their own content, the new interpretation is saying that DMCA doesn't apply since the ISP isn't hosting it. So they can't become involved with a takedown notification or an attempt to get your information through the DMCA process. Instead, they must sue a John Doe, and then work from there to get the court to give them your information. Can still happen, just a whole lot tougher.

    My own personal question is, can I register my computer or my IP address, or some other identifier using the Interim Designation of Agent and a $30 payment? Reading this page, I fit the definition at the bottom as a provider of network access (without modification) within my home, and an approximate 10' distance surrounding the home.

    If I can register myself as a DMCA agent for the network communications in and around my home, is this of some advantage to me?

    [ Reply to This | # ]

    Excellent!
    Authored by: JMonroy on Sunday, December 21 2003 @ 02:03 AM EST
    The argument used to win this case for Verizon is the same one Streamcast Networks (Grokster, et al) used when they were hauled into court,... and won!

    This article discusses the various applicable copyright/infringement cases, and outcomes, from years past up to present. In the Streamcast case, the judge ruled that Streamcast had had no way of verifying the infringement happening on it's data lines. Here's the key portion of the law that applies to this argument:

    (3) Contents of subpoena. - The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

    How is it that Verizon, or other networks, are supposed to verify this infringement? What... are they supposed to put binary pattern sniffers looking for music bit patterns, if even such a thing exists? Are they supposed to break into the computers of it's customers looking for MP3's to enforce the law for the RIAA?

    Napster lost because it facilitated the file trading by using centralized servers. Verizon is in no way facilitating, nor directly benefiting, from these actions. Therefore they fail the test required by this law to get the quick "court clerk authorized" subpoena.

    [ Reply to This | # ]

    • Excellent! - Authored by: Anonymous on Sunday, December 21 2003 @ 02:56 AM EST
    • To identify the person - Authored by: Anonymous on Monday, December 22 2003 @ 08:27 AM EST
    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: RSC on Sunday, December 21 2003 @ 02:51 AM EST
    I have always found it amazing that the Movie and Music pigopolist don't seem
    to understand that thier products are not life saving, are not required and do
    not help people stay alive.

    These products entertain and thats it. The more they use any means they can
    (even political and legal) to manipulate their market, the more they are
    alienating and marginalising their "customers".

    I don't download pirated music because it is both illegal and immoral, not
    because they use legal threats. These types of threats just make me avoid their
    products like the plague. And of course their hipocracy (price fixing) just
    makes it worse.

    I wonder how many others out there think the same way? I think there is quite a
    few, and the number is growing.

    Perhaps the RIAA needs to evaluate the current business model and drag them
    selves into the 21st century.

    Sounds like some other group we are familiar with. ;-)


    RSC


    ---
    ----
    An Australian who IS interested.

    [ Reply to This | # ]

    Kevin McBride's promotion
    Authored by: Anonymous on Sunday, December 21 2003 @ 03:07 AM EST
    I thought I would see if I could find any other cases involving Kevin McBride
    (and justifying his being down for $60 million if SCO win their $3 billion).

    I found this:

    1. A 1999 appeal against a ruling for $11,443 against his client, in a plumbing
    contract dispute:

    http://66.102.11.104/search?q=cache:KH2q_f9PqDYJ:courtlink.utcourts.gov/opinions
    /appopin/aspen.htm+%22Kevin+P+McBride%22+Salt+Lake&hl=en&ie=UTF-8


    2. I have not yet been able to find any other cases. If you have any, please
    post them.


    3. Curiously, I was under the impression he worked for Angelo Barry and Banta
    (that's what has been widely reported) and was engaged through them.

    However he doesn't seem to appear on their attorney page:

    http://www.angelolaw.com/attorneys.php

    Anybody? Any explanations?

    (Incidentally 95-1 has McBride's address in it, and it's a Salt Lake City
    address)



    Well obviously I'm lacking much information, so more would appreciated.





    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Sunday, December 21 2003 @ 03:21 AM EST
    I don't wish to be pedantic, but there is a split infinitive in the following
    paragraph:

    "The US legal system is based on the fundamental principle that when you
    go to court, it ought to actually be justice that you get."

    Also, it is a bad habit to start a sentence with "but" or
    "and". Other than that, I enjoy what you write and can see
    evidence of the passion that pounds the keys as you type.

    Cheers,

    Andrew

    [ Reply to This | # ]

    Curious coincidence
    Authored by: Anonymous on Sunday, December 21 2003 @ 03:21 AM EST
    Remember Judge Paul G. Cassell was initially assigned to the case, and reclused
    himself back in March (giving the case to Kimball) ?

    Here's a curious coincidence (and probably explanation of why he reclused
    himself):

    "He [Cassell] is listed in Martindale-Hubbell as a member of the Salt Lake
    City law firm of Utah Sen. Orrin Hatch's son, Brent Hatch of Hatch James &
    Dodge."

    from - http://www.independentjudiciary.com/nominees/nominee.cfm?NomineeID=24

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: eric76 on Sunday, December 21 2003 @ 08:30 AM EST
    Are there any requirements that ISPs even keep records that could be used to
    identify who was logged on?

    What would happen if the ISP responded to a subpoena with "We don't have
    the foggiest idea who was logged on"?

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Jude on Sunday, December 21 2003 @ 10:25 AM EST
    I think we can expect the entertainment industry to mount an intensive lobbying
    effort to get congress to restore their "instant subpeona" ability.
    I also think we don't have much hope of preventing this, because the lobbyists
    have far more time, money, and access to legislators than citizens will ever
    have. However, maybe we can persuade congress to make "DMCA II" a
    little more reasonable.

    The part of the original DMCA that bothered me the most was that there was
    essentially no penalty for improper use of the subpeona provision. As I
    understand it, it is purjury to obtain such a subpeona by falsly claiming to be
    an authorized agent of the copyright holder, but only the true copyright holder
    is allowed to make a complaint about such fraud. There's two problems here:

    One is that if the material in question is not copyrighted, there is NO party
    that has standing to make such a complaint.

    The other is that if the material is copyrighted, and the victim of the
    fraudulent subpeona does have permission to publish, the victim is dependant on
    the copyright holder being willing to file and pursue the complaint about the
    fraudulent subpeona. The party who is actually harmed by the false subpeona
    can't complain about it themselves.

    Maybe we can persuade congress to at least fix these problems.


    [ Reply to This | # ]

    Financial things, free music
    Authored by: pyrite on Sunday, December 21 2003 @ 10:26 AM EST

    etree.org, for those of you that may not know, is an excellent website for getting involved in a community of folks that share live shows from bands that allow taping/trading of live shows.

    There is of course their home page etree.org, and there is also a page on their wiki with trade friendly information here. This is probably not an inclusive list. Anyway, music can also be free, it's up to the band.

    ----------

    The one thought that has been going through my head about these lawsuits is this:

    How much music can a human being listen to in their lifetime? Typical music piracy, on the other side of the hemisphere, for instance, involves (a) pirate(s) making lots and lots of copies to sell to lots and lots of people. The more copies, the more money they make illegally.

    File trading, on the other hand, at the end user level, involves one person listening to that music. Sure, if you share it on your P2P app, more people will be able to download it from you, but still...the end user will be one person listening to it. The more you distribute a particular piece of music, of course, the weaker the argument gets.

    But at an individual level, and certainly when it comes to the ethics of downloading (not uploading) music, I haven't heard any discussion about the fact that one person can only listen to so much music. That has got to be an inherent limitation of the amount of unpaid royalty charges any one person could possibly accrue. It appears to be fairly easy these days to accumulate more music than you will ever be able to listen to in your entire lifetime - it's a little scary, actually. On top of that, listening to music 24/7 is something that people rarely do, certainly not for years on end.

    So if you are going to sue someone for $150,000 dollars per song, that really applies to pirates making money of thousands of copies, not an end user listening to one copy of that work. The "campaign" tries to blur the distinction between "legacy" piracy, P2P trading, uploading, and downloading, but in terms of unpaid royalties, they are not the same at all.

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Sunday, December 21 2003 @ 11:20 AM EST
    My favorate music site encourages downloads. Its IMUA. This is an example of how musice should be distributed.

    [ Reply to This | # ]

    Poetic Justice
    Authored by: PeteS on Sunday, December 21 2003 @ 12:35 PM EST
    In November, the RIAA won a round in this ongoing saga by Moving the appeal from California to Washington DC because they believed the DC court would give them a more favorable ruling.

    Here the RIAA crows somewhat about this 'procedural' victory

    "We are pleased with the California court's decision to transfer the suit filed by SBC to the District of Columbia," RIAA President Cary Sherman said in a statement. "Since the DC court has already addressed most of the challenges raised by SBC and resolved them in RIAA's favor, we believe that the decision to transfer the case throws a significant monkey wrench into SBC's case."

    In hindsight, the RIAA appears to have shot itself in the foot by effectively choosing the 'most favorable' appelate location and then losing.

    ---
    Artificial Intelligence is no match for natural stupidity

    [ Reply to This | # ]

    OT: PJ, tuxrocks, etc.
    Authored by: Anonymous on Sunday, December 21 2003 @ 01:47 PM EST
    Can we see 89-2?

    I am interested to know if the docket is correct, and the court intends to review the old delay motions. Highlighted in this quote:

    89 - Magistrate Notice of Hearing Motion hearing set for 10:00 1/23/04 for [83-1] motion to extend time for pla to respond to dft IBM's third set of interrogatories and third request for production of documents, set for 10:00 1/23/04 for [73-1] motion to strike the 5th, 15th, and 19th affirmative defenses asserted by the SCO Grp in its Answers to IBM' Amended Counterclaims, set for 10:00 1/23/04 for [66-1] motion to Compel Discovery, set for 10:00 1/23/04 for [52-1] motion to extend time to 10/24/03 for pla to resp to mot/compel, set for 10:00 1/23/04 for [51-1] motion to extend time to respond to dft IBM's second set of interrogatories and second request for production of documents, set for 10:00 1/23/04 for [44-1] motion to compel Discovery To be held before Judge Wells cc:atty (Ntc generated by: JD) (blk) [Entry date 12/10/03]

    [ Reply to This | # ]

    • OT: PJ, tuxrocks, etc. - Authored by: Anonymous on Sunday, December 21 2003 @ 06:58 PM EST
      • Not moot - Authored by: Anonymous on Sunday, December 21 2003 @ 07:21 PM EST
    OT SCO advertising a product.
    Authored by: Anonymous on Sunday, December 21 2003 @ 04:17 PM EST
    Take a look at the ad top left hand corner http://linuxtoday.com/. SCO backup solutions.

    [ Reply to This | # ]

    OT MS Survey for Linux users.
    Authored by: trox on Sunday, December 21 2003 @ 05:44 PM EST
    MS is asking Linux users to fill out a survey.

    Newsforge article.

    I went and filled it out, I guess they are asking the Linux community what they would like to see in Windoz. I asked for open standards and no antitrust like behavour.

    The more users that respond the better for Linux.

    [ Reply to This | # ]

    Misrepresentation material is infringing
    Authored by: Anonymous on Sunday, December 21 2003 @ 05:52 PM EST
    (f) Misrepresentations. -

    Any person who knowingly materially misrepresents under this section -

    (1)

    that material or activity is infringing, or

    (2)

    that material or activity was removed or disabled by mistake or
    misidentification,


    shall be liable for any damages, including costs and attorneys' fees, incurred
    by the alleged infringer, by any copyright owner or copyright owner's
    authorized licensee, or by a service provider, who is injured by such
    misrepresentation, as the result of the service provider relying upon such
    misrepresentation in removing or disabling access to the material or activity
    claimed to be infringing, or in replacing the removed material or ceasing to
    disable access to it.


    This seems to say if, say, SCOG makes false claims under DCMA they can be held
    liable. Am I reading this correctly?

    kaycee77025@yahoo.com

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: jkondis on Sunday, December 21 2003 @ 06:02 PM EST
    For those interested, a Slashdot article reported on a new technology called MUTE, which is peer-to-peer file sharing software and network which anonymizes each of the users by translating and routing requests and transfers through other clients. I'm not sure to what extent it relies on existing gnutella clients, but it certainly could overcome many of the threats from the RIAA.

    I had been thinking of this very thing for a year now. (A coworker commented that he thought it should work quite well.)

    So the relevance of MUTE is that it would likely make it *much* harder to find the identity of file sharers or their grandmas than on a traditional gnutella network... ...J

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Sunday, December 21 2003 @ 06:17 PM EST
    From my very limited experience of file trading, when downloads are made they
    often come from multiple servers and not just one.

    Could the File Sharing Protocols not be amended so that this is 'always' the
    case by default, i.e. files are never shared from a single source?

    That way you are just an accessory rather than 'sole server' for any
    particular file.

    By configuring your server to take this action, you could argue that you are
    supporting copyright by not making the complete file available.

    Just a thought.



    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Sunday, December 21 2003 @ 07:35 PM EST
    > Let me state that I don't personally download music,
    > unless I have paid for it. I always try to keep the
    > law, whatever it is,(...)

    Please avoid this trap that the RIAA set up to take out
    fair use right: this sloppy wording can be seen to imply
    that 'downloading music is illegal unless you pay' which is
    of course false because that lead directly to SCO-like FUD:
    'free download are illegal, but paying is OK'.
    Just substitute 'music' by 'webpage' and see what you get.

    1) dowloading: Usually it is the provider of copyrighted
    work that can infringe copyright not the receiving end.

    2) the copyright holders can allow such download, by
    providing the music for download themself, or using a free
    license like the Creative Commons License or the GPL.

    3) paying may not be enough: You may pay the wrong person,
    or the copyright holder may refuse you a license whatever
    amount you propose to pay.

    The RIAA goal here is to scare people from exercising fair
    use right, not to block real piracy.
    Groklaw should not help them by using sloppy wording!

    [ Reply to This | # ]

    Confused as Always
    Authored by: Anonymous on Sunday, December 21 2003 @ 07:52 PM EST
    Confused ?????


    Dont we have to pay more for our CDRs as compensation to the Music Industry?

    Isnt that enough?

    If I am already paying a 'tax' for my CDRs then surely I have already *paid*
    for the music I intend to Download?




    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: linuxbikr on Sunday, December 21 2003 @ 09:03 PM EST
    I am very happy about this ruling. At least it might give the RIAA pause.

    Understand this, you are only infringing copyright if you download material that you DO NOT possess in another form (such as on a CD). Downloading an MP3 for a song you have on a CD you own would be considered "fair use" under copyright law (IANAL, but this is my understanding of how it works).

    Offering the file for download, on the other hand, is infringement any which way you slice it since you are not distributing the material in question with the permission of the copyright holder.

    This creates an interesting dichotomy. I would have zero problem going onto Kazaa or any of the other P2P networks and download MP3s, Oggs, etc, of music I already have on CD. Saves me the time to rip it or maybe I don't have the technical savvy to do it. If the RIAA ever subpoenaed me, I'd enjoy making that argument before the court.

    I do not think I am breaking the law as a receiver of the material since I am exercising rights that are granted to me under copyright law in line with the fair use doctrine. So far, the ability to make an MP3 from a song you own on a CD to play in your car, burn to a mix CD or place onto a player hasn't been attacked. Most consumers would agree with this view. The RIAA would have it be different and make you pay for each different format of the same material and make you pay for it multiple times.

    RIAA has to go after those that make the material available. They are the ones who are guilty and should be spoken to, fined, jailed, etc. I do not condone copyright infringement no matter how I might feel about how slimy the RIAA really is. You are just as guilty if you download songs that you do not have in another format in your personal collection (cassette tapes count, you can rip from an audio input).

    If the RIAA member companies would simply offer their catalogs for us to download from for a reasonable fee ($1-$2 a song) with files that are totally unencumbered, you may be surprised about how well it would be received.

    One of the reasons so much file trading goes on is a deep belief that the consumer is being screwed by being overcharged and through ignorance. Ignorance can be dealt with through education.

    If you offered unencumbered tracks cheaply, I think you see the companies making money AND I think file trading would begin to decline. If I paid $18 for 15 of my favorite tracks from the depths of the RIAA catalogs, I might be not as willing to trade those tracks that I paid for since I would basically be giving away something I paid for to strangers. Moreover, since those 15 tracks are all ones that I wanted rather than just one from a CD I had to buy to get it, my motivation for tossing those tracks to the Internet is diminished since my personal satisfaction level would be very high.

    This is my interpretation of things and how I would act. I do know if I paid money to get tracks that I really wanted, I won't be giving them away since I paid for them and they are mine. Sure, there are going to be those that will do it anyway, but that will always be the case. I just don't think it will be as bad as the RIAA thinks.

    Of course, the RIAA isn't acting in the interests of their customers. To them, we are sheep to be sheared for every ounce of wool we can provide as often as possible. They are acting like a monopoly and not as a group of good corporate citizens.

    Like everything, this will pass and a new way of things will rise and establish itself. Only time will tell what form it will take but for now, it looks like the DMCA is finally receiving some long-overdue limits. I eagerly look forward to the day it is struck down. First battle won, let's continue with the war. :)

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: etmax on Sunday, December 21 2003 @ 09:26 PM EST
    I have to say it's a breath of fresh air to see a judge that hasn't tired of
    the barrage of incessant crud that goes before the courts from those that would
    pervert the letter of the law.

    ---
    Max - Melbourne Australia

    [ Reply to This | # ]

    RIAA v. Verizon -- OT
    Authored by: RealProgrammer on Sunday, December 21 2003 @ 09:27 PM EST
    Because they fought on the side of user rights, I've decided to keep my Verizon
    Wireless cell phone plan.

    Maybe it's silly, but I want to encourage corporate behavior that I like.

    ---
    (I'm not a lawyer, but I am a literate citizen)

    [ Reply to This | # ]

    Judge PJ
    Authored by: Anonymous on Sunday, December 21 2003 @ 09:58 PM EST
    I think PJ should be a judge. She has all the qualities needed to be a good
    judge.

    And I'm glad that the judge on this case also seems to be a good judge.

    Too bad that this is not true of all judges. It seems like the higher you go,
    the more there is the inclination to take the law into your own hands and make
    it in your own image.

    I say: PJ for Judge!

    :)

    [ Reply to This | # ]

    OT: New letter in the wind...
    Authored by: photocrimes on Sunday, December 21 2003 @ 10:42 PM EST
    Can anyone get ahold of this "new" threat letter?

    >>>
    The new letters, signed by Ryan E. Tibbitts, SCO's general counsel, name more
    than 65 programming files that "have been copied verbatim from our
    copyrighted Unix code base and contributed to Linux."
    <<<

    also:

    >>>
    Letters asserting copyright violations in Linux are being sent to several
    hundred of its corporate users. SCO, based in Lindon, Utah, is also sending
    letters to many of its 6,000 Unix licensees requiring them to certify in writing
    that they are complying with SCO licenses, a company executive said. SCO's Unix
    licensees are asked to certify that none of their employees or contractors have
    contributed any Unix code to Linux.
    <<<

    Hmmmm, and if we don't?

    http://www.nytimes.com/2003/12/22/technology/22sco.html?ex=1072674000&en=6f2
    eadb52fd7069b&ei=5062&partner=GOOGLE

    [ Reply to This | # ]

    Misplaced idealism
    Authored by: Anonymous on Monday, December 22 2003 @ 01:27 AM EST
    "Decisions are sometimes disapointing, but now and then, a judge stands up
    and says: we have a rule of law here, and no matter who you are, no matter how
    much money you have, no matter how powerful your friends are, here in my
    courtroom, the law is applied fairly and without partiality. When you see it
    happen, it's a beautiful sight."

    The problem is, this is news. When judges DO rule fairly and without
    partiality, according to the law as written by legislators and the Constitution
    as written by the Founders -- it's a big deal. Because it doesn't happen
    often.

    And THAT's why lawyers are mostly scum; even our esteemed host betrays her
    built-in bias: "Making new law is what litigators live for." Judges
    and lawyers aren't supposed to make law; that job is what we elect LEGISLATORS
    for. (Now, perhaps the Legistators don't do a very good job at their job --
    but that doesn't give unelected "litigators" an excuse to usurp it,
    anymore than life-tenured and unelected judges)

    [ Reply to This | # ]

    Another court case of interest
    Authored by: Anonymous on Monday, December 22 2003 @ 04:02 AM EST
    Read on the web:
    RealNetworks Sues Microsoft Over Antitrust RealNetworks Files Antitrust Lawsuit Against Microsoft, Alleges Monopoly of Digital Media
    Marc

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Monday, December 22 2003 @ 08:48 AM EST
    Did anyone else reading this decision see it as a hint of a bigger victory? Obviously, the RIAA's argument was simplistic and ignored the details of the DMCA, which Verizon used to great effect in their argument. However, as a law student I read alot of cases, and I know that courts are often willing to accept a simplistic argument when they feel the result is correct. No one in the legal field would have faulted the judge for simply saying that Verizon's argument was splitting hairs, and that the DMCA was intended to cover such a situation.

    Since the judge didn't do that, I'm wondering why. Perhaps its because he felt that Verizon's Constitutional agruments could not be ignored. If he realized that he was going to have to rule in Verizon's favor anyway, perhaps he chose to accept Verizon's technical argument rather than reaching the Constitutionality of this portion of the DMCA? Just a thought, but it might be a sign that even a re-institution of this subpoena provision might be unconstitutional?

    [ Reply to This | # ]

    RIAA v. Verizon -- The Circuit Court of Appeals Trims the RIAA's DMCA Wings
    Authored by: Anonymous on Monday, December 22 2003 @ 10:19 AM EST
    The one thing that many of you have been missing here is that the RIAA has
    already been paid by YOU the consumer! The home recordinga act of the 80's was
    put in place by the RIAA. Basically, every blank cassette tape, blank CD, blank
    DVD, or any recordable media and recording device has a RIAA surcharge attached
    to it. For example, the RIAA get about $8.00 us for each and every CD burner
    sold in the USA. The RIAA get 2% of the sale price of blank media. So any time
    you back up your computer you are paying the RIAA. Your family photos on CD the
    RIAA just made money. Your a graphic artist, designer, photographer and store
    you work on CD/DVD, the RIAA is your partner in business, because every time you
    burn one they get a cut...Don't get me wrong there are provision that would
    allow you to be exempt from paying those fees to the RIAA, but you have to fill
    out a zillion document and file them with the RIAA to get a refund of the monies
    you already spent. This law was enacted specifically to allow people to copy and
    share music. Maybe just not as volumous as consumers are doing now.

    [ Reply to This | # ]

    Collaborative Music
    Authored by: Tim Ransom on Monday, December 22 2003 @ 11:31 AM EST
    I added this to another thread here, but thought I might start a new one with it, as I like the idea:

    The folk, blues and jazz traditions are vital American cultures, expanding in much the same way as the oral traditions until they were 'monetized' and summarily destroyed by big business.

    I've been a musician for over twenty years, and can attest to seeing some incredible talent wither on the vine (and worse) because of the sick way the biz is run. The RIAA does not represent artists, just the labels who treat them like chattel.

    They are more concerned with maintaining their stranglehold on the industry, and want to stop us from publishing ourselves.

    For anyone interested in a look into my personal hell, please read this excellent article, called the Problem with Music, by Steve Albini:
    http://www.thebaffler.com/albiniexcerpt.html

    Below are some links to some fun musical interaction:

    http://bluesharp.onlinejam.org/jam02/jamlisten.shtml
    http://www.livejam.com/

    http://www.mousejam.com/

    http://www.tr ansjam.com/

    And finally, an actual collaborative composition by two guys who've never met.
    3/4 of the way down the page:

    http://homepage.mac.com/nadhan/iblog/B1285841030/

    I would happily record any Groklaw collaborations (at last, something useful for me to contribute!)
    My first suggestion:
    A MAD magazine-style rewrite of the theme from Rawhide. Simply replace Rawhide with McBride and so on. I believe the western theme is apt, and the tune is ripe with possibilities. If someone gets the lyrics together, I will happily do the rest. I picture using the actual voices of SCO execs. I can slice up existing audio into words, match as many as possible to our lyrics, then put them in pitch using ACID, and viola! SCO execs singing the Theme to McBride! Any takers can email me through my profile!

    Happy holidays and, of course
    Thanks again,

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