Judge Conflicted Interest in MPAA/2600 DeCSS Case? 174
vm writes "It turns out that Judge Lewis Kaplan used to advise Time Warner on DVD issues in the past. He also has past issues with one of the attorneys on 2600 Magazine's legal team; Martin Garbus. The New York Linux Users Group is holding a protest outside the federal court house this morning in support of Goldstein and crew. For more details, see this EFF DVD update or the NYLUG website."
Looking for more info (Score:1)
Talk about a Bad choice for Judge (Score:1)
Apeal (Score:4)
But on the other hand, in this case DeCSS is clearly breaking the law (DMCA) and they are guilty. The only hope is that this goes to a court that can look at the constitutional legality of the DMCA (the Supreme Court?) and actually rule the DMCA illegal. Which we all pray that will happen, but it will take a lot of money on 2600's part to do it. And there is no telling if it will be declared unconsitutional for that matter.
See My Pictures of the NYLUG Protest! (Score:3)
and we had a ton of support...
despite Slashdot's very late posting...
Anyway, pictures are here [dadadada.net] for all to enjoy...
Pictures of:
Re:The plot thickens (Score:1)
And he denied it (of course).
That is to say, he denied a motion to
dismiss himself from the trial...
Re:That explains it (Score:1)
It appear that he has already done so..
This was IMO a move by Garbus to get
that motion (and its denial by the Judge)
on record... When the record is reviewed
on appeal, the easter egg opens and we win!
hooray!
Re:It's not an access control device (Score:1)
So you're telling me I can make bit for bit copies of the DVD and the MPAA won't come after my ass with a great pointy stick? Tell that to the latest ring of pirates rounded up in Hong Kong.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Appearance alone is sufficient (Score:2)
That's why the fact that the judge's firm once worked on a DVD case doesn't bother me too much, but the personal animosity displayed towards the defendant's lawyers *does*. It won't take many arbitrary decisions that harm the defendants (e.g., regarding scheduling, admissibility of evidence, etc.) for a reasonable member of the community to decide that the most important thing to bring to this judge's court is not the facts, nor is it the law. Bring his golfing buddies - the ones who let him win - if you want to win.
*That* perception will kill the public's faith in the courts, and the extreme violence in drug trafficking shows what happens when people are denied access to fair courts. (To revisit an earlier discussion, it's one of the reasons I support decriminalization of the low-level trafficking to adults. I would rather see small drug deals gone bad end up in small claims court than gun battles with collateral injuries and deaths!)
Re:Not really suprising I suppose (Score:1)
> to the vast and unfied forces lined up against it. Whilst we all know
> that DeCSS is a perfectly legal piece of software designed to
> facilitate playback under Linux, I think that very few people outside
> of
> tool for the rampant piracy of DVDs.
Well, that's somewhat true..
A lot of the people I handed flyers to
outside the courthouse today thought
that DeCSS was actually Napster and it was very
difficult to re-educate some of them.
I'd explain a bit about DeCSS and the case
and about fair use rights, etc... and then they'd be like, "um, so
then you get on the internet and you can play the movies there?"
and show that I just wasted 10 minutes on them.
Re:What the hell is this about? (Score:1)
I think the code was standing still at the time, and would not require any braking action to slow it down.
Re:Let's meow here... (Score:1)
Fuckhead.
loev,
Re:Appeal (Score:1)
Just because that may be the worst thing possible for DMCA. Region encoding is against WTO rules. You then have a country and a large number of organizations that ADMITTED to breaking the trade rules, and laws that supported it. WTO overrides national laws (yeah, I don't agree with the WTO, but might as well take advantage of it)
Re:Let's see here... (Score:1)
meow.
loev,
Re: MPAA opinion in a nutshell (Score:1)
They couldn't have done it if it weren't for the DMCA? Wow, they're lame.
--
Re:That explains it (Score:2)
Re:Appeal (Score:1)
God, Bush is winning? We're all screwed.
--
Re:Motion for Kaplan's recusal denied... (Score:1)
Re:Appearance alone is sufficient (Score:2)
(1) Kaplan would have to repudiate the work of his former partners to accept the defenses arguement.
(2) A prior business relationship between him and Time Warner exists -- he has profited (as a partner) from his firms cozy relationship with Time Warner, and thereby he will naturally have pre-judged their case favorably.
(3) Kaplan would be bound by the attourney-client priviledge with Time-Warner, since he would have had access to their priviledged documents while at their firm. Kaplan chastised Garbus for this very point when the MPAA tried to remove Garbus, even though Garbus's firm didn't actually represent Time Warner, just their business partner. Kaplan actually endorsed post-trial disciplinary action against Garbus. What a hypocrit.
It's just basically absurd to think that a judge can be impartial when he has profited from his firm's providing legal advice on the specific issues that he now has to judge. Come on. Federal law is very clear on this and Kaplan is just totally ignoring it.
Re:Lack of morality in Open Source (Score:1)
Unfortunately we don't seem to have any ideal communist states. Please see the World Trade Bank refusal to find China for telling 50k farmers to move to Tibet. Our government might tell people they have to move, but wouldn't tell them where.
In democracy, the majority rules, and the individual is sacrificed.
Well the individual's vote may not be the wasy it goes, but you can always run for office yourself. Let's face it, any lousy actor or governor can do it if they try hard enough.
Unfourtunately, people who consume more are not happier than people who are poor.
No, but they have much better toys.
but I try not to judge people based on whether they are good workers
I'm down with that in a basic Buddhist way, but if you think back to a time when there was only one guy in the village who made shoes, one who grew wheat, etc. you may consider that producing enough of your specialty for the group probably equated pretty well with being "good" in a help-out not-see-people-without-shoes-on kinda way.
Re:Aren't judges prohibited from (Score:1)
Sec. 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) ''proceeding'' includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) ''fiduciary'' includes such relationships as executor, administrator, trustee, and guardian;
(4) ''financial interest'' means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a ''financial interest'' in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a ''financial interest'' in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a ''financial interest'' in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a ''financial interest'' in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
Re: The distinction between "access" and "use" (Score:1)
Re:Clear cut conflict (Score:3)
In a large law firm, not every partner knows the details of every client. There is no allegation that Kaplan himself actually worked on the Time Warner case. That kind of information is just not available to the defense unless they happened on a document that he wrote.
The motion to disqulaify is based on an appearance of conflict.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
It's not an access control device (Score:2)
That whole line is dead. Kaput. CSS does not prevent any sort of access.
It's been concluded several times on the list that CSS is a market control measure. That's all.
I know the strength of CSS is not an issue. Under the DMCA efficacy doesn't matter. What matters is that CSS does not in anyway prevent piracy (access control).
My Kingdom for a lawyer not associated with TWC! (Score:5)
We all know of the accusations against the lead defense attorney, and how he "worked for TW" when in reality he defended a small company owned by a larger company which then got bought by a division of TWC. We all scoffed at the accusation, because it was such a weak link that a conflict of interest was almost impossible to visualize.
But now are we on the other side? Was this connection a direct one? Was it a thread of connections looping through 5 different companies where the job happened 15 years ago? If people are to take us seriously, we can't claim one is just loony and the other is a "serious conflict of interest."
Anyway, that's my two cents. Be careful about playing both sides of the fence.
Re:Lack of morality in Open Source (Score:1)
Aren't judges prohibited from (Score:1)
Only hackers use Linux. (Score:2)
Re:Motion for Kaplan's recusal denied... (Score:3)
Molog
So Linus, what are we doing tonight?
Re:Let's see here... (Score:1)
Conflicting interest? Something's wrong here... (Score:1)
Re:The plot thickens (Score:4)
The foundation for a claim of bias is provided by 28 USC 455 [cornell.edu] especially (b)(2) and (a).
The procedure for handling this is provided by 28 USC 144 [cornell.edu]:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Basically, Kaplan cannot just decide the motion on his own bias. He MUST appoint another judge to hear it. He didn't. He is also not allowed to proceed. This trial is a sham!!
Re:Lack of morality in Open Source (Score:1)
I was hoping for more honesty... (Score:1)
I don't think the fact that the subject of this case being DeCSS is all that relevant. It bothers me that this judge, who has had previous contact with either parties (and the contact seems to portray him possibly favoring one party over the other), did not excuse himself from the bench for possible conflicts of interest. I don't care if it was a long time ago, in a galaxy far, far away, or if he joined the dark side and "forgot"; a judge cannot be excused because he "forgets".
The fact that these new findings have come into light should be more than enough reason for this judge to remove himself. Hopefully these new findings will only win more favor towards the Linux DVD effort.
Re:Let's see here... (Score:1)
Either way, we lose. (Score:2)
When presented with a signed affadavit from Mr. Kurnit (stating Judge Kaplan had questioned the integrity of Mr. Garbus in telling peers not to associate with him) Kaplan still didn't recuse himself, in effect calling his former colleague a liar. Kaplan is hell-bent on becoming part of history - he wants his name on this case.
Kaplan is clearly going to rule in favor of the Plaintiffs. Even if Kaplan's bias becomes cause for successful appeal, it just means we are back at square one, only poorer.
Re:Let's see here... (Score:1)
its not just the pavement, its the access way.
but i would like to see hovercraft on roads...whats the hovercraft braking ability like? cornering?
But, it's possible he's a grey fluffy kangooroo (Score:1)
Re:Motion for Kaplan's recusal denied... (Score:1)
Sorry if that comes out as offensive - but I thought that DeCSS was proven illegal a long time ago.
This case is about linking to the DeCSS program.. NOT about whether or not said program is illegal. Sheesh.. figure out what your protesting.
Re:Not really suprising I suppose (Score:1)
Whilst we all know that DeCSS is a perfectly legal piece of software designed to facilitate playback under Linux, I think that very few people outside of /. and similar sites has any clue that this is anything other than a tool for the rampant piracy of DVDs.
ummm....yeah. I tink the most use any of us (my friends and I)have gotten out of DeCSS is to capture some fight scenes from a copy of the matrix on dvd that we rented from blockbuster for a parody/school vid project...b/c at the time we didn't have access to a DVD player or see the need to buy the player, although all my friends already have the cassette version.
Although using DeCSS for educational purposes outside of an encryption class are pretty few and far between, i think very few people (no more than a couple hundred) people actually DeCSS their DVD's to a non-encrypted format just to watch them exclusivly on another platform. I think for the most part, people use it to make copies of the movie at DVD quality onto 1 or 2 CD's for their highschool buddies.
Yahoo! has an interesting article that states quite clearly that you can "combining the decoding software DeCSS with DiVX, a two-hour movie that takes up 4.5 billion bits of storage can be compressed to around 750 million bits". That's means most (1 1/2 hour) high quality movies on DVD could end up fitting on a single CD! Scary thought. Dropping the image quality ever so slightly, you could probably fit Fight Club or The Matrix on a single overwritten cd no problem.
that link to the yahoo article is this: http://dailynews.yahoo.com/h/nm/20000717/re/video_ piracy_dc_1.html
Re:time to recuse himself (Score:2)
He should have recused himself as soon as he found out what the subject of the trial was.
James
Re:My take on this (Score:1)
Well, as a poor barefoot boy from fucken South Brooklyn, albeit one with the benefit of an education in Sunny Massafuckenchussets, I hope I might be permitted a fucken reply to your actual point, before the pussywaist fucken dipshit moderators censor you. I'd have to say the following:
Kaplan is under no obligation to recuse himself, and the conflict of interest is clearly non-material. We're not dealing with bought judges here; Kaplan's past as an attorney is irrelevant to his present as a judge. On your extremist interpretation of the rules of procedure, it would be very difficult to find judges to try cases involving large corporations. The "previous issues" with Garbus are, frankly, 2600's fault for having hired a loose cannon of a lawyer.
I appreciate your confusion on this point; many of the pointy-headed fucken idiot Slashbots are equally confused. But a "conflict of interest" is a conflict of interest, not some possible personal prejudice. Judges are assumed to be able to put aside their personal prejudices, and indeed, have been since caveman times. The only grounds for a recusement would be if the judge has an actual interest in the case.
--montoya
New pet on free-dvd.org.lu (Score:3)
Re:Let's see here... (Score:1)
hey now! didn't the congress try to (and temporarily manange to) shut the feds down just a little while ago back?
Does the law actually work? (Score:5)
The legal system consists of 100's of millions of lines of cruft, NOT ONE LINE OF WHICH HAS EVER BEEN TESTED TO SEE IF IT WORKS!!!
Imagine for a second that we wrote 100 million lines of code to control a nuclear reactor, and that nobody ever checked any of it. We just put the code into the computers and took over control of an actual working reactor without testing. I think that everyone who knows anything about programming would agree that would be a horrendously irresponsible thing to do. Yet, nobody seems to have any problem with putting completely unchecked legal code into the much more dangerous human control system of the law; THIS IS ABSOLUTELY INSANE.
How can the legal system be tested? A preliminary step would be to take 1000 innocent defendants around the country, trump up charges against them, run them through the criminal justice system and see how many of them are convicted. That would give us an idea of the false positive error rate of the legal system.
The question I have is this: "How could anyone, who is not monumentally evil, object to testing the legal system; what would you be afraid of - spending a little time and money to see if we know what we are doing?"
The accidental testing of the legal system which was done by DNA work on death row inmates in Illinois is appalling; about half of the death row inmates were shown to be innocent by the testing. Surely capital cases are the ones where we have to be the most sure, and yet the legal system produced a 50% error rate when it was checked. It was so bad that the governor of Illinois was forced to suspend executions in the state! A 50% error rate means that you could do just as well by flipping a coin!
It is high time that we checked to see if the people in the legal system have so much as a clue. I suspect that when we do, we will find the results of testing ghastly. My prediction, based on my own analysis of how the legal system works, is that about 90% of the innocent defendants run through it will be convicted. When dealing with the lives and freedom of people I suspect that no one but a psychopath can find a 90% error rate acceptable.
I HOPE the judge (hopefully un-biased one) reads. (Score:1)
that said, You can access it as long as you don't copy their "black box". If you know what goes in and comes out, and make something that fills the funtion of the "black box" without touching their trade secrets, it is perfectly legal.
Another thing, This case might be doomed from the beginning because of the word "Hacker". I read 2600, but I think (sadly) that most people will see not multiple mega-corps bullying legal people, but stopping the hackers who most people think are bad. Alas, we are fighting the very thing (mass media) that turned "hacker" into a bad word, and any regular media, won't be presenting it fairly, just how they are told to.
GO 2600! GO EFF! where is the ACLU?
Re:Apeal (Score:1)
But...
They didn't make DeCSS - this is a case to test the legality of LINKING to something that is illegal.
Jeesh... (Score:1)
Little by little, the RIAA and MPAA are revealing their vast network of connections in- and out- side of the entertainment industry. I wonder how long it'll be before people realize that these particular SIGs have amassed quite a bit of power?
time to recuse himself (Score:4)
Even assuming the judge tries to rule honestly without letting his former status sway him, you would think he probably has some strong preconceived notions.
Re:It's not an access control device (Score:4)
I agree that this case isn't about "piracy"; it's about blocking unlicensed DVD players which might not include such "features" as Macrovision and region coding.
However, I don't think your assertion that CSS is not an access control measure is correct. It is, at heart, an access control measure that has nothing to do with "piracy". But the statue doesn't say anything about "piracy" - it defines an access control measure as anything that controls access to a copyrighted work. If CSS wasn't an access control measure, you wouldn't need to break it to view a DVD.
-Isaac
Re:Apeal (Score:2)
How are they breaking DMCA? There is a clause for reverse engineering for interoperability. If the purpose of DeCSS is for playback under Linux or to facilitate that, they are not (IMHO, IANAL) breaking DMCA.
DMCA (Score:2)
Doesn't this mean that none of these laws come into play until next year? Does anyone want to help me out here?
Re:time to recuse himself (Score:3)
The MPAA brought a motion to remove Garbus because his firm had represented Time Warner on a completely unrelated matter. While Garbus remained on, Kaplan recommended post-trial disciplinary action. What a hypocrit!
Federal law demands that judges recuse themselves if there is the slightest reason to suspect that they might be biased. For example, three of the judges in the Circuit Court will not hear the Microsoft case, presumably because they merely own stock in the company.
Re:Either way, we lose. (Score:2)
I'm surprised that the judge in question didn't step down immediately it was brought to his attention. As Kenrod states in other words, the principle is that justice must not only be done, it must be seen to be done: the least appearance of partiality on the part of the judge requires that he relinquish the matter to another tribunal.
Damn it, if a judge of the UK House of Lords has to step down from hearing Pinochet's case because he has a publicly-declared commitment to human rights, then a judge with known issues of conflict with one of the counsel appearing before him ought to relinquish the matter to some other member of the bench.
I'm not sure about the past retainer with Time Warner, though. I'd say that one was covered by the ordinary rules of the professional game: every judge in a common-law jurisdiction will have some kind of past practice, and unless he was in-house counsel, I don't think the retainer amounts to evidence of actual commitment to them. Is it alleged that he had conduct of matters for them, or was just a partner at the time?
No-brainer: judge should recuse himself (Score:2)
But things are rarely what they seem -- reporting of technical legal matters, as with technical technical matters, in my experience, is rarely accurate.
We need a new programming language for law (Score:2)
Imagine for a second that we wrote 100 million lines of code to control a nuclear reactor, and that nobody ever checked any of it. We just put the code into the computers and took over control of an actual working reactor without testing.
I was having a discussion with someone a few months ago about how lawmakers could potentially learn a lot from computer science types of theory. Obviously not for everything, but there are parts where it makes sense. Particularly with simplification through effective re-use of effort.
Put simply, the language that law is written in needs variables. Laws should state the reasoning behind them instead of what they are, and what they are should be derived every time they're interpreted.
Without being a lawyer, my impression is that there are a lot of legal documents that get written incredibly specifically, and then sit on a shelf for 100 years until someone (who matters) notices that they need updating.
The best example I can think of is a committee that I'm on. We recently had a revamp of our society constitution, typed up by a chap in his 60's (actually he had his secretary to type it for him). I complained about an update to some wording to now include that notification can be by "email or fax".
Honestly he would have to be kidding. Constitutions of any sort take years to change once they're noticed meaning that 50 years from now we'll be stuck with the words "facsimile" and "email" in our constitution. There's no telling how the definitions of these words could change over time or even if they'll still exist, and the actual point was supposed to be "reliable communication". We could have easily said this and then had more dynamic external specifications stating what reliable communication was.
The irritating thing is that I lost, because he was the lawyer (well.. judge, actually) and I'm a young computer geek meaning I definitively don't know anything about it. I put it down to the legal profession being so pedantically paranoid about being specific because they don't have a clue how to write anything dynamically and keep it reliable.
I know we're still continually learning how to effectively do this ourselves, but to me it seems we're well in front of the legal profession - which isn't showing any signs of progress at all.
===
Re:Kaplan is (indirectly) helping (Score:2)
*Who says* motion for Kaplan's recusal denied? (Score:2)
--
Re:*Who says* motion for Kaplan's recusal denied? (Score:2)
It seems that Kaplan has decided that antitrust is not an issue in the trial. Of course he would think this, since his firm was professionally responsible for preventing it from becoming an issue.
Re: MPAA opinion in a nutshell (Score:2)
Copyright law and the U.S. Supreme Court's 1984 "Betamax" decision provide for "fair use" of copyrighted material. For example, scholars and critics can quote lines from a book in a review without fear of incurring copyright liability. Or, a soap opera fan can tape an over the air TV show during the day to watch later that night -- under the Betamax decision, an unscrambled broadcast can be copied for this type of "time shift" personal use.
BUT "fair use" is not an open-ended concept. It does not justify any action an individual may take with a copyrighted work, whether they have purchased the copy or not. It is a right to use what is available, not a right of access to works for fair use purposes. For example, the law has always recognized that a show sent by scrambled pay-per-view signal may not be viewed or copied through the use of an unauthorized, illegal descrambler. The owner of the signal has - and has always had -- a legal right to scramble the signal to prevent unauthorized access to the signal for viewing or to make copies of the show.
Most importantly, this concept of fair use does not override specific statutory enactment such as the DMCA, which are intended by Congress to give clear protection to the rights of the creative community to use technological means to protect its product. It is this protection which has enabled the motion picture industry to launch new products in digital format, such as DVDs.
UPDATE: Kaplan's already refused to recuse! (Score:3)
Appeals are likely. Don't look for resolution anytime soon.
And the protest in front of the courthouse is permitted to run until 5pm, so if yer reading this and are still nearby, get out there!
-Isaac
Re:Why did this take so long? (Score:3)
It was discovered by the defense in depositions taken last week. It is possible that Kaplan never knew of the specific work that his firm was doing for Time Warner.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Re:It's not an access control device (Score:3)
What do you mean by "access". If I purchased a DVD disk and brought it home, do I not have "access to the discs"?
Part of the defense is the examination of various models for "authorization". Under the DCMA, "circumvention" is defined as "access without authorization". How specifically are people authorized to view DVDs? The only way that the rights retained by the people under copyright can be retained is if "authorization" for DVDs is granted at first sale. Under this authority model, DeCSS does not circumvent as defined in Section 1201.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Re:EXACTLY WHAT I MEANT! (Score:2)
What I'm saying is, it's not necessarily a conspiracy, or even intentional. It just so happens that this judge, in the past, has dealt with the party before under different circumstances. A problem for the bench? yes. intentional conspiracy? I doubt it.
Re:We have already won. (Score:2)
We may have won part of the battle - the continued availability of DeCSS.
But by even being sued we're losing another part - the right to exercise our rights without penalty.
Think what a "chilling effect" it is on the exercise of these rights when every programmer who does so finds himself harassed via the legal system.
Yes there are a lot of us. But losing one - or years of his productivity and the bulk of his assets - for every program written that annoys an established interest is not, IMHO, acceptable.
We need to go beyond keeping the software alive out-of-jurisdiction, and beyond even winning this case. We need to get to the point where we, via the very legal system now being used to harass us, can drastically punish the opposing interests for misusing that system in this way.
Bullies won't stop attacking you until attacking you gets them hurt.
Re:The plot thickens (Score:2)
Um, I think YOU didn't read the part about or good cause shall be shown for failure to file it within such time
Garbus did just that (for the Time Warner Connection). He learned of Kaplan's firm's representation of TW with respect to DVD antitrust just 48 hours before.
In fact, Kaplan admits this is timely in his ruling denying the motion to recuse. His arguement was basically that antitrust isn't an issue in the trial -- which is absolutely bogus.
I've been discussing the legalities of this case since it's inception at Openlaw. It's been a major topic from day 1. A search of the Openlaw mailing list archives for "antitrust" retrieves 397 posts.
In fact, I think Garbus was quoted in a magazine as talking about US v. Paramount
Re:My Kingdom for a lawyer not associated with TWC (Score:2)
On July 14 EFF's defense team filed a motion to disqualify Judge Lewis Kaplan from presiding over the DeCSS trial after discovery revealed that he advised Time Warner on DVD matters while in private practice. Judge Kaplan was a partner in the powerhouse NY law firm Paul Weiss when he counseled Time Warner, a plaintiff in the case, on antitrust issues related to DVD technology, an issue to be decided in this case.
2600's defense team has also learned that while in private practice, Judge Kaplan accused its lead litigator, Martin Garbus of professional misconduct and cautioned a co-worker against taking a position in Garbus' law firm. Both incidents create a conflict of interest for the Clinton-appointed federal judge, who has pushed for a speedy trial since the initial court appearance.
Worked directly for one of the major players in an advisory capacity (so he basically worked for the plaintiff) and has what appears to be a rather sizeable grudge against the defendant's lead attorney.
Connection looks pretty direct to me.
The memo and affidavit supporting this (Score:4)
Martin Garbus affidavit supporting the motion for recusal/disqualification [eff.org]:
Memorandum of Law [eff.org] supporting the motion for recusal/disqualification:
My take on this (Score:4)
Now I want you all to understand something. I am just a caveman, who was frozen in ice and thawed out by your modern people. Your world frightens and confuses me!
When I check the time on my brand new Rolex, I wonder if little magic pixies inside are turning the hands. When I watch one my 7 HBO channels in my 60 inch big screen television, I think to myself "how did these people get trapped inside this giant box?" And when I drink a bottle of vintage Dom Perignon champagne from a crystal glass, I wonder if the burning sensation from the bubbles is really caused by tiny demons who live inside the champagne and are trying to get inside me and kill me. My primitive ways and customs prevent me from understanding your modern culture.
But there is one thing I am certain of! 2600 pretty much has no hope of winning at this court level. Not only is Judge Lewis Kaplan promote firm and strict adherence to the poorly written DMCA, but he is clearly acting on his past bias as shown by his refusal to recuse himself for conflict of interest or even allow Garbus to speak on such. The only legal advice my caveman mind can offer is for 2600 to ride this loss and take it to a higher court, placing emphasis on Kaplan and his obvious bias and conflict of interest in favor of the MPAA. Thank you for your time.
Kaplan is (indirectly) helping (Score:2)
Generally, most people here agree the DMCA is a bad law. Most will (probably) also agree that DeCSS violates this law.
Kaplan is looking at this from a very narrow interpretation of "Does DeCSS violate this law?" and I think this is a good thing. We'll get through this section of the trial quite quickly. Kaplan will hand down a decision saying basically "Yes, DeCSS violates the anti-circumvention provision of the DMCA."
Then we move to the Appellate Court, where Constitutional issues are more properly decided. (Maybe to the Supremes after that, I don't know.)
This is where we want to go. The faster we move to the Appellate level, the better.
Kaplan may not like us, but he is helping us.
Nifty, huh?
We have already won. (Score:5)
Further development of this product is occuring worldwide right now. The results will be accessable through the world wide web.
This is just like when pgp was deemed to be a dangerous munition in the USA and forbidden for export. But it was still fully accessable to everyone on the internet, wasn't it?
So, just take a deep breath and know in your heart of hearts that we have won already. What this one man who has already decided the guilt of the defendants in this case says about the matter is meaningless.
We, the people of the world, have already spoken on the matter and we find the defendant innocent.
Re:The motion to remove Judge Kaplan (Score:2)
I'm not sure it's better, given that it makes it easier to overturn it while leaving the DMCA constitutionality issues unaddressed.
Of course there's enough here to be outraged about, maybe it'd just be greedy to pick on DMCA as the most important principle. After all, I'm recalling the first news here on this topic, where from the very first it was apparent that Kaplan was a "hanging judge".
Corrupt Corporate Government (Score:3)
Re:We have already won. (Score:2)
This is the result of SUBSTANTIAL effort [pgpi.org], and exploited a loophole in the cryptographic munions laws, which is a little different from the issues in the current case.
However, your point is still valid and taken - DeCSS is here to stay. The MPAA can complain until they're blue in the face, but they can't make it go away.
We, the people of the world, have already spoken on the matter and we find the defendant innocent.
Unfortunately, we can't stop the legal system from providing "justice" against the defendants, and I suspect that the defendants care at least a little.
Day 1 trial summary from WiredNews (Score:2)
Slashdot needs a related threads reparenter (Score:2)
They aren't. I've got work to do. See This Thread: It's not an access control device [slashdot.org]
The motion to remove Judge Kaplan (Score:4)
This trial is quickly turning into a kangaroo court, and it is only the fact that someone like Garbus is the lead attorney that may prevent this from becoming a VERY Bad Thing (tm).
Re:It's not an access control device (Score:4)
It does if you consider knowledge of the algorithm to be part of the access key. (Security through obscurity.)
Unfortunately, under the DMCA, piracy doesn't matter either. The market control measure is the very thing that DMCA is protecting, not the copyright. So while the defense can bring up the point that piracy isn't an issue in this case, the sad fact is that the prosecution can also make the same point. All the MPAA has to do is admit that it's not about piracy (thereby looking bad and taking a PR hit) and they win due to the letter of the law.
It's simply a bad law. DeCSS and 2600 have broken this bad law.
IMHO, in the mean time while we wait for the law to be struck down or repealed, the best thing to do is to pervert the law by taking it to its extreme logical conclusion: make a DVD that current licensed DVD players can play, and then sue the licensed DVD manufacturers for breaking DMCA. DMCA doesn't say anything about licensing by an arbitrary party (DVDCCA) causing circumvention to be legal. The implication is that only the copyright holder can make it legal, so we just need a copyright holder who isn't part of MPAA. Then we can cause a stalemate by causing all DVD players, licensed or not, to be DMCA violators.
I am not currently working on doing this, but I would be willing to put up a couple hundred bucks to help fund such an effort. (It would require a DVD burner, knowledge of how to create as CSS-encrypted DVD, and a home-made movie (perhaps a movie of someone making a speech about why DMCA is so bad).)
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No check or balance (Score:2)
IANALE (IANAL either), however, since the only real check and balance in this situation is the judge's own personal honor, to voluntarily step back and let someone else preside over the case, the effective answer to your question is "No." In Kaplan's case, he has demonstraded quite clearly that he has no honor or integrity whatsoever.
As another noted, this will be decided on appeal. The results of this trial are a forgone conclusion, and quite probably already paid for in advance.
Perhaps Kaplan could be impeached for knowingly presiding over this case with such a flagrant conflict of interest, but judges almost never get impeached. Even judges who commit heinous acts, such as raping a woman in their courtroom (it has happened) are difficult to dislodge. Something as innocuous as denying the little guy justice in favor of a large corporate cartel doesn't stand a snowball's chance in hell of getting any public attention - a prerequisite to any kind of reparation or justice.
We've already lost then (Score:2)
Molog
So Linus, what are we doing tonight?
Re:Let's see here... (Score:2)
Just a thought.
In the absence of government, people will figure things out on their own.
Let's see here... (Score:4)
Gee, conflict of interest? That's only the start of it. What you have here is a vast, movie-producing conspiracy against our anarchist beliefs! Every level of the govt. is involved - from the Drug Nazi's to the Dept. of Justice and Other Lawsuits. Stop the Govt. now!
This post brought to you by the number 2600 and the tag <ul>.
Re:EXACTLY WHAT I MEANT! (Score:2)
A lawyer used to advise some company..
and many years later, he is a judge, and somehow it's conspiracy?
What does this mean? (Score:2)
Re:Let's see here... (Score:2)
It really sucks. It's like running on ice; the only way you can change your course is by the propulsion system. That is, you cannot decelerate faster than you can accelerate. A little bit like a jet boat, but much worse: there is no water resistance to slow you down fast...
It's no surprising they didn't catch more than that...
BTW, what's that regulation against hovercraft???
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Here's my mirror [respublica.fr]
Time delay (Score:2)
IANAL...
1201(a) doesn't come into play yet, so you are allowed to use DeCSS all you want, until October of this year.
However: 1201(b), having to do with manufacturing, importing, trafficing in, etc. things that circumvent, doesn't have any time-delay clause, so it's in effect now.
You can use DeCSS for a few more months, but you can write it, distribute it, etc.
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Moderators, please resign or start thinking... (Score:2)
IAAL, and there are so many things wrong with the above post logically and legally that I would prefer you simply drop it into the karmic bit box.
Moderators, if you're not proficient in or informed about the subject of the post (microprocessor design, law, hot grits, programming, ice hockey, etc) THEN DON'T MODERATE IT UP!!!
It's bad enough that people who don't know what they're talking about are posting. It's far worse when people who don't know about the subject of the posts are moderating them.
A post with text similar to "I am not a (whatever), but..." should be karma'd to -1 UNLESS YOU KNOW ABOUT THE SUBJECT AND CAN CONFIRM ITS ACCURACY!!!
Re:The motion to remove Judge Kaplan (Score:5)
I've been following the case very closely for a long time and I've noted what I thought was a clear bias on Kaplan's part, and I am not alone. John Young of cryptome has attended many of the hearings and he says that it comes across even stronger in person. This bias is different from ruling against the defense -- it's a clear attempt to deny them due process.
Some of the things that Kaplan has done that stink of bias are:
1. Refusing to delay the preliminary injunction hearing and proceding by teleconference, thereby setting an extremely prepared plaintiff against an extremely unprepared defendant.
2. Refusing, during the PI hearing, to hear expert testimony from the defense
3. Moving the trial date forward from Dec to July in response to allegations of plaintiff stonewalling during discovery
4. Refusal to delay the trial in response to the defense's motion that the schedule gave plaintiffs an unfair advantage
5. Scheduling accelerated discovery and refusing to appoint a magistrate to oversee it, despite defense motions that these unfairly aided the MPAA.
6. General and repeated rudeness towards the defense at nearly every opportunity
Re:Kaplan is (indirectly) helping (Score:5)
I'm tired of all the people who seem to take this for granted. If you read the statue you'll see several things that to me make it clear that DeCSS does NOT violate the statue:
(1) "Circumvention" is required for a violation, and this is defined as access without the authority of the copyright owner. The First Sale doctrine should apply and say that the copyright owner volunatarily parts with his rights of control as soon as he takes his just reward in the marketplace.
(2) The DMCA has an exception for reverse engineering. DeCSS clearly allows interoperability and meets this exception.
(3) The law explicitly says that "fair use" is not affected see 1201(c)(1). Under the Sony Betamax decision, DeCSS would qualify.
(4) DeCSS, as a computer program, is protected expression under the statue. Computer programs are 'literary works' under well established copyright laws. The DMCA explicitly exempts speech from it's scope in 1201(c)(4). Further it explicitly bans prior restraints from judicial authority in 1203(b)(1)
(5) The tying of DVD copyrights to "licenced" players violates antitrust laws and constitutes "misuse of copyright", both of which are affirmative defenses in copyright cases.
All of these are based purely on statutory arguements and existing caselaw.
Re:It's not an access control device (Score:2)
Not true. The judge is ALLOWED to look at whatever areas of the case he wishes to. The constitution is the supreme law of the land, and may be considered at any level of court.
The judge however, seems UNWILLING to look at anything but a very narrow, closeminded view of this case. This indicates to me that he has a prior bias.
Such is life and the legal system, and carping about how unfair it is does little to alter the fact.
The fact is that the legal system attempts to preserve the illusion of fairness. Otherwise, they are violating the purpose of their own creation. If something no longer serves the purpose it was created for, people start wondering why it still exists in the way it does.
Berkman Center/Openlaw (Score:2)
But what I really like is this link [harvard.edu] of a harvard.edu/Law School website. For of those of you who are curious, the title of the page is, "Where can you find DeCSS?" I guess they have a bunch a ppl running around saying, IAAL...
That explains it (Score:4)
Clear cut conflict (Score:2)
-B
Motion for Kaplan's recusal denied... (Score:5)
The sad truth is that 2600 is gonna lose this round. Kaplan's not interested in considering the constitutional merits of the DMCA, just whether Eric Corley violated the statute as written. (Which he did. It's a bad law, but DeCSS pretty clearly circumvents an access control device, and the law doesn't care for what purpose - all such circumvention is proscribed.) This is one for the appellate courts, IMHO.
-Isaac
Why did this take so long? (Score:4)
The real question is why it took as long as it did for this to come out into the open. Judge Kaplan has to have known what he did in the past; he should have recused himself at the very start of the trial. Did he really think that it was OK to preside over a trial where he had consulted for the plaintif on matters of relevance to the trial in the past?
Doubt you'll find anything like that... (Score:2)
You can find plenty of information about copyright and its origins, as well as its evolution here in the US and in other countries. Aside from basic facts like those (which you can find links to on the eff.org site), you're not likely to find any "unbiased" interpretations of what it all means. Everyone has their own bias and every document I've read (I'm doing some research for a speech I've got to do for one of my classes) shows a certain bias in its take on why certain things were done and what certain things mean. I haven't found anything that could be considered unbiased, and I don't expect to. Like anything else, you just have to read both sides and try to extract bits of truth from the rhetoric.
Kaplan's plan? (Score:2)
Perhaps not struck down, but a retrial ordered at least. On the other hand, if Kaplan is really as scurrilous as some are making him out to be (rather than merely incompetent), perhaps he's laying the groundwork for such a strike down based on other factors than flaws in the DMCA itself.
Consider: perhaps he realizes that the DMCA is flawed with respect to DVDs and DeCSS. If he rules that way, or it goes to appeal and the appeals court rules that way, then MPAA is up the creek (from their point of view) as far as that goes. On the other hand, if the case is thrown out for other reasons, no ruling has been made on DMCA and the law can still be used to intimidate other folks.
Keep hope alive! (Score:2)
"Remember you are not here to decide if my client is guilty or not, you are here to decide if the DMCA is just and constitutional."
That probably wasn't his exact wording but you get the jist of it. I think the jurors should be aware of this fact; but then again they may not even know what the DMCA entails beyond this specific case.
Of course in the mock trial, he was found innocent (hmm.. i wonder if there was a biased jury? hehe) and a good time was had by all (even Bernie S. who was playing the role of Jack Valenti...who BTW had a "stop the mpaa" t-shirt on). However I now fear the worst, and can only hope that this case is moved up to the higher courts.
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Not really suprising I suppose (Score:3)
After all this case has been destined to fail from the very beginning thanks to the vast and unfied forces lined up against it. Whilst we all know that DeCSS is a perfectly legal piece of software designed to facilitate playback under Linux, I think that very few people outside of /. and similar sites has any clue that this is anything other than a tool for the rampant piracy of DVDs.
Unfortunately since this case involves media corporations which are notorious for having their fingers in as many different pies as possible the coverage of this has been extremely biased in many places. And now we hear that the judge has helped the MPAA on DVD issues before? I suppose I should be suprised, but considering how the MPAA has twisted things so far I can't really say that I am.
Until America puts some kind of control on its corporate sector this kind of flagrant abuse of wealth and power seems likely to continue, at the expense of the little guy. Unfortunately since these corporations make so much money for the US government thanks to their freedom to gouge consumers and engage in dodgy business practices, it seems like the government has little inclination to change things.
Sure MS have been taken to court, but they were an extreme example of abuse of power and position. If they weren't so public they probably would have gotten away with it - hundreds of other companies do.
Unfortunately whilst it's still profitable for the government to allow it, you're going to keep getting situations like this where it is the commercial sector that gets the deck stacked in its favour.
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Jon E. Erikson
Re:Let's see here... (Score:2)
this is all fine and good, but if you do away with teh government, who is gonna pave teh interstate 90 so that i can get to teh gen-con next month? ok bye.
loev,
The amicus briefs and this... way to start 2000 (Score:2)
The case brought by the MPAA is also a joke by itself. They've got a weak argument about authorization. They have a circular argument that says you can use this player cuz we say so. Sorry that's like Ford saying we should all drive black Model T's.
But this just made my day. Originally I thought hey it's not like either side has been completely impartial (pirates stealing, MPAA causing people to lose their jobs), but having seen the affidavits posted on EFF.org, I'm just shocked Kaplan was ever let into this case.