--- Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=felten More on declaratory judgments: http://www.west.net/~smith/declare.htm --- Date: Wed, 6 Jun 2001 19:58:40 -0400 To: declanat_private From: Mike Godwin <mnemonicat_private> Subject: Re: FC: RIAA responds to EFF and Felten, complains of "publicity machine" The controversy is already established by the letters RIAA sent to the plaintiffs. A subsequent declaration that, hey, nobody's going to sue anybody doesn't make the "case or controversy" go away for Article III purposes. --Mike ********* Date: Wed, 06 Jun 2001 23:55:44 -0400 Subject: Re: FC: RIAA responds to EFF and Felten, complains of "publicity machine" From: "R. Polk Wagner" <polkat_private> To: <declanat_private> In-Reply-To: <20010606190611.A32134at_private> On 6/6/01 7:06 PM, "Declan McCullagh" <declanat_private> wrote: > > But if Verance does made that pledge, does this mean EFF's suit would > be dismissed? (I am not saying this would be a good thing, since I'd > like to see what the courts decide.) My understanding is that the > Declaratory Judgment Act only applies to "cases of actual > controversy," and if the controversy evaporates, so does the suit. No? > Maybe. The legal doctrine on DJs basically requires that the plaintiff be under "reasonable fear" of suit by the defendant. It is obviously very fact-specific, and will depend upon whether Felten & company were actually and credibly threatened. (They say they were, notwithstanding the RIAA, etc. denials.) Another interesting issue in this regard is that the RIAA's original "threats" of legal would seem at first glance to be weak in the extreme, since the (1) the DMCA specifically exempts "encryption research" from its scope, and (2) it's not at all clear that publishing a paper is within the statutory scope of "trafficking" in circumvention technology. Goes to the credibility of the original threat. -- ===================================== R. Polk Wagner University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, Pennsylvania 19104 http://www.law.upenn.edu/polk/ ===================================== ********* From: "Andrew Grosso" <Agrossoat_private> To: <declanat_private> Subject: Re: RIAA responds to EFF and Felten, complains of "publicity machine" Date: Wed, 6 Jun 2001 20:45:48 -0400 FYI, this doesn't mean anything. The fact that the statute is on the books and is open to an interpretation that these people could be sued is enough under the Declaratory Judgment Act for standing to pursue this case. And it should be pursued. Since when do private corporation have the right to pick and choose when free speech will be restricted? [Hint: They don't.] ********* Date: Thu, 07 Jun 2001 08:24:27 -0400 From: "Bryan Neft" <bsneftat_private> To: <declanat_private> Subject: Re: FC: RIAA responds to EFF and Felten, complains of "publicity machine" Declan, There is a principle in federal law that although a point may be moot, if because of timing issues it is likely to evade effective review, a court may decide to hear the case. Bryan S. Neft Klett Rooney Lieber & Schorling, P.C. One Oxford Centre 40th Floor Pittsburgh, PA 15219-6498 ********* Date: Wed, 6 Jun 2001 19:38:33 -0700 (PDT) From: Bruce Umbaugh <bumbaughat_private> To: Declan McCullagh <declanat_private> Subject: Re: FC: RIAA responds to EFF and Felten, complains of "publicity machine" In-Reply-To: <20010606190611.A32134at_private> I think that Cary Sherman's recent comments are consistent under the following interpretation: We never intended to sue Felten. We were reasonably sure that we could bully him, and our intent was to issue such threats as needed to shut him up without actually giving the issues a hearing in a court of law. Has Sherman said anything inconsistent with that reading? --Bruce ********* Date: Wed, 06 Jun 2001 23:26:21 -0400 From: robin <robinat_private> To: declanat_private Subject: Re: FC: RIAA responds to EFF and Felten, complains of "publicity machine" > But if Verance does made that pledge, does this mean EFF's suit would > be dismissed? (I am not saying this would be a good thing, since I'd > like to see what the courts decide.) My understanding is that the > Declaratory Judgment Act only applies to "cases of actual > controversy," and if the controversy evaporates, so does the suit. No? No. EFF and the plaintiffs are trying to not only remedy the current problem, but are also asking the court to remove future threats of DMCA-based lawsuits or criminal action against scientific researchers, because the threats themselves have a "chilling" effect on free speech. In a press conference held on June 6, EFF legal director Cindy Cohn answered a question essentially identical to this one. She said that settlement offers or promises from the defendants would not end this matter; that the original threats caused the need for this suit, and that withdrawing those threats after they had their intended effect would not be a satisfactory remedy. The plaintiffs and the EFF are trying to strike down the DMCA, period. They have wanted a strong test case for a long time, one where there was no "Is it a device or is it speech?" question a la the 2600/DeCSS case to muddy things and detract from the basic issue they are asking the court to decide here, namely, "Does the DMCA fly in the face of the First Amendment?" This is that case. Nice, clean, all-American professors and grad students at prestige universities being prevented from carrying on research and presenting scientific papers because the DMCA was a bad law, made in error, now used by Greedy Corporatiions to stifle academic freedom and hinder scientific advancement. God! Apple pie! Better living through modern science! Freedom to innovate! - Robin 'roblimo' Miller ["Freedom to Innovate" was also Microsoft's slogan during the antitrust trial and has expanded to a section of their website and a newsletter. :) --Declan] ********* ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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