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List:       dmca-discuss
Subject:    Re: [DMCA_Discuss] Fear and Loathing on the Internet
From:       "Matthew T. Russotto" <mrussotto () speakeasy ! net>
Date:       2003-09-24 1:42:48
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On Tuesday, September 23, 2003, at 03:01 PM, Robert F. Bodi wrote:

>> On Friday, September 19, 2003, at 03:28 PM, Robert F. Bodi wrote:
>>
>>> plaintiff.  No "due process" rights are being violated.  Further, the
>>> "due
>>> process" clause applies to governments, not individuals or private
>>> entities.
>>
>> A subpoena, backed by the full force of the US government, is subject
>> to the due process clause.
>
> Which is not to say that due process is being violated.  In fact, the
> subpoenas have been upheld by the courts as legal.  The subpoena 
> requires a
> court order.  The rule is being followed.  Due process is satisfied, 
> IMHO.

The process is the RIAA complains, they send a takedown letter (which 
the provider may safely ignore, if they are a 512(a) provider), they 
bring the letter and a request to the court clerk, the court clerk 
issues a subpoena.  That's "due process" in only the very narrowest 
sense of the term, in that it's the process in the statute.  There's no 
balance or judicial oversight.

>>> Further, I fail to see how privacy applies here.  There is no right 
>>> to
>>> anonimity to infringe.  The power of the subpeona is there for any
>>> plaintiff
>>> to use if they have evidence that you infringe.
>>
>> No evidence is required for a DMCA subpoena.
>
> A court order IS required.  But it does appear that an evidence 
> requirement
> is lacking.  It may well result that a court will eventually require 
> some
> evidence showing in order for the subpoena to issue.  Maybe that would 
> be a
> fair result.  But courts have ruled that there is NO privacy right to 
> trade
> in copyrighted music, and I happen to agree.  The first amendment lets 
> us
> speak, but I see no reason to read into it a right to speak 
> anonymously.

Fortunately even the Supreme Court disagrees with you on that last 
point.

>>> find out who lives in that house.  How is this any different?  
>>> Further,
>>> privacy is NOT a fundamental right found anywhere in the Constitution
>>> (except by some overreaching zealots).
>>
>> Like the majority in Griswold v. Connecticut?  And anonymous speech 
>> has
>> been determined to be a protected right by several Supreme Court
>> decisions; the DMCA subpoena process violates that, by allowing anyone
>> who merely asserts a copyright violation to obtain another person's
>> identity.
>
> Anonymity rights, if any, are limited.  Further, such rights are 
> typically
> only protected against GOVERNMENT action.  There is NO such right when 
> used
> to protect criminal enterprises.  A subpoena is only 
> quasi-governmental in
> effect.

The subpoena's only power derives from the government.  The RIAA can 
send demands for a users identity until the cows come home; they have 
no force until they get them rubberstamped by a court.  This is not a 
private action somehow shielded from civil rights; it's a government 
action taken on behalf of a private entity.

And your "criminal enterprises" remark presupposes the guilt (or, as 
this is a civil case, culpability) of the target of the subpoena; not 
only is there no requirement for the RIAA to demonstrate this to 
ANYONE, there's no opportunity for the target to demonstrate otherwise 
before their identity is revealed.

>> But it's clear that the ONLY right you believe in is copyright.
>
> What a silly statement.  All rights must be balanced.  Clearly, if 
> copyright
> is to have ANY meaning, it cannot be superseded by some imaginary 
> "right" to
> infringe, and not be caught.  There is no such right.

Once again you turn any questioning of the RIAAs actions into a demand 
to be able to infringe freely; it's a strawman.

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