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

[Declan McCullagh <declan () well com>]

---
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: declan () well com
From: Mike Godwin <mnemonic () well com>
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" <polk () law upenn edu>
To: <declan () well com>
In-Reply-To: <20010606190611.A32134 () cluebot com>

On 6/6/01 7:06 PM, "Declan McCullagh" <declan () well com> 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" <Agrosso () worldnet att net>
To: <declan () well com>
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" <bsneft () klettrooney com>
To: <declan () well com>
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 <bumbaugh () well com>
To: Declan McCullagh <declan () well com>
Subject: Re: FC: RIAA responds to EFF and Felten, complains of "publicity
 machine"
In-Reply-To: <20010606190611.A32134 () cluebot com>

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 <robin () roblimo com>
To: declan () well com
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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