FC: More on Felten v. RIAA lawsuit and declaratory judgments

From: Declan McCullagh (declanat_private)
Date: Thu Jun 07 2001 - 06:30:08 PDT

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    ---
    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]
    
    *********
    
    
    
    
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