RIAA Admits It Wants DMCA Overhaul; Blames Judges For 'Wrong' Interpretation

from the uh-sure dept

We've discussed how E-PARASITE/SOPA is really an attempt by the entertainment industry to rewrite the DMCA, even though they pretend otherwise. However, it appears that the RIAA is now comfortable with admitting that's the real goal of its legislative agenda these days. The RIAA's litigation boss, Jennifer Pariser, famous for making highly questionable statements under oath in trials against people accused of sharing music they love, is now claiming that the DMCA wording is great, but that the interpretation by the courts has just been dreadful -- so Congress should clarify that and slap the judges down. As reported by Greg Sandoval at CNET:

"I think Congress got it right, but I think the courts are getting it wrong," Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. "I think the courts are interpreting Congress' statute in a manner that is entirely too restrictive of content owners' rights and too open to [Internet] service providers.

"We might need to go to Congress at some point for a fix," Pariser added. "Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions."

This is pretty typical of the RIAA. The one part of the DMCA that they fought tooth and nail when it was put together was the service provider safe harbors. However, it was a key part of the negotiations with the tech industry, as part of the tradeoff to get the rest of the (dreadful) DMCA. The RIAA has always hated the safe harbors. It's just so much easier to make third party service providers liable. It's easier to sue service providers rather than fans.

So now they're rewriting history, pretending that the safe harbors weren't intended to do what they do. This is a joke. If you talk to folks on the tech side who negotiated the safe harbors, this was exactly how the safe harbors were meant to work. If anything, some of those involved are upset that the safe harbors aren't even stronger (as they were in the CDA for non-intellectual property issues). What Pariser and the RIAA really mean when they mock judges for their rulings on the safe harbors is that they never liked the safe harbors in the first place, so the best way to get what they always wanted (i.e., no real safe harbors) is to pretend that it's all a big "misinterpretation" that needs clarification from Congress.

Filed Under: copyright, dmca, interpretation, jennifer pariser, safe harbors
Companies: riaa

DOJ: Secret Interpretation Of PATRIOT Act Just Like Grand Jury Subpoena If You Ignore 'Factual Context'

from the these-are-not-the-legal-interpretations-you're-looking-for dept

A couple months ago, Senators Ron Wyden and Marc Udall -- who have been banging the drum about the feds' secret interpretation of provisions of the PATRIOT Act -- asked the Justice Department to stop claiming it wasn't a secret law. The DOJ, in the form of Assistant Attorney General Ronald Weich, has responded (embedded below) and the response can be summarized as:

There is no secret law, it's just a classified interpretation of a public law.

As if that's any different? The DOJ defends all this by saying:

To be sure, the FISA Court opinions and orders relevant to the use of section 215 and many other intelligence collection authorities are classified. This is necessary because public disclosure of the activities they discuss would harm national security and impede effectiveness of the intelligence tools that Congress has authorized. This is true of many other intelligence activities that our government throughout its history has carried out in a classified manner in the interest of national security. Since it is not possible to disclose these activities to the public, Congress established the Senate and House intelligence committees to ensure that Congress is able to perform its proper oversight role on behalf of the American people.

Sounds nice, but it's actually ridiculous. No one is asking the DOJ to reveal its intelligence activities. They're asking it to reveal its secret interpretation of the law. Even if we grant the claim that activities should be classified, the interpretation of the law should never be secret.

The DOJ also claims that since the intelligence committees are briefed on its secret interpretation, and the PATRIOT Act extensions keep passing anyway, that's proof that Congress is fine with the secret interpretation. Of course, as Wyden has pointed out on the floor of the Senate in the past, the problem is that the vast majority of Congress has no idea how the DOJ is actually interpreting the law. They're basing the extensions on the plain reading of the law, and the obvious implication is that the DOJ is interpreting the law way beyond what the text appears to say.

Finally, at the end of the letter, Weich tries to suggest that the info the DOJ scoops up under the PATRIOT Act really isn't that different than what a federal prosecutor can get under a grand jury subpoena process, and in fact claims that the standard under the PATRIOT Act is higher, but then at the very end states that "the factual context" in which the PATRIOT Act is used may be different than "ordinary criminal matters." Uh, isn't that the whole point? The "factual context" is the difference between legal and illegal. Driving sober and driving drunk are analogous, other than the "factual context." Withdrawing cash from a bank and robbing a bank are analogous, other than the "factual context." Selling insurance and extorting payments are analogous, other than the "factual context." In other words, the "factual context" is pretty key here, as it's the entire difference between legal and illegal.

Is it any wonder that the DOJ wants to hide that factual context?

Filed Under: doj, factual context, interpretation, marc udall, patriot act, privacy, ron wyden, secret law

EU Legal Review Agrees With US: ACTA Dreadfully Written; Wide Open To Interpretation

from the this-is-not-a-good-thing dept

Earlier this year, the Congressional Research Service (CRS) did a legal review of ACTA to see if it conformed with existing US law. While the USTR tried to keep the report buried, it eventually came out -- and basically said that ACTA was drafted in a dreadfully confusing and opaque way. The issue? It's not even clear if US law conforms to ACTA, because ACTA can be interpreted in many different ways -- some of which suggest the US is in compliance, and some of which say we're not.

The EU Parliament's legal service recently conducted a similar review and came to an identical conclusion: ACTA may or may not be legal... depending on how you interpret it.

This should be seen as a massive problem. When you're crafting a giant international agreement that is binding on various countries (and, yes, the US pretends it's not binding, but the other signers insist it is binding, meaning under international law, they likely can hold the US to a claim that it's binding), the fact that it's so vague that what is and what is not legal under it is totally wide open to interpretation means you've drafted a really bad agreement that shouldn't be approved. In the meantime, any country signing such a document should be ashamed of itself, because it doesn't even know what it's bound itself to.

Filed Under: acta, interpretation, legal review, vague