Re: [dvd-discuss] Two articals

["John Zulauf" <johnzu(at)ia.nsc.com>]

Summary:

(a) if the RIAA is planning to hack into computer systems without
authorization, isn't this criminal conspiracy?

(b) how can the federal law allow for search and seizure by private
citizens or corporation not subject to judicial review

Details follow.

Richard Hartman wrote:
> 

>
> <blockquote>
> If the current version of the USA Act becomes law, the RIAA believes, it
> could outlaw attempts by copyright holders to break into and disable pirate
> FTP or websites or peer-to-peer networks.

Maybe I was sleeping, but just when did corporations gains
search-and-seizure rights, and those without the limitation against
unreasonable-search-and-seizure the government faces.

> [...]
> "We might try and block somebody," Glazier said. "If we know someone is
> operating a server, a pirated music facility, we could try to take measures
> to try and prevent them from uploading or transmitting pirated documents."

Couldn't some "conspiracy to hack" charges be brought.  They are
planning as a group and organization ways to access and interfere with
the operation of a computer system without authorization of the owner,
or operator of that system.  If I we running a
"www.lets-hack-the-snot-out-of-RIAA-member-computers.org" and openly
discussing the ways in which we would interfere with those companies I
would certainly expect a visit from the FBI.  Even if the project were
-- "www.ways-to-get-even.org" which organized and planned hacking
against persons as an alternative to small claims court... this would be
equally "legally challenged."

Here is the RIAA, looking to use unauthorized use attacks on persons
against which they may have a legal course of action.  They are
discussing and declaring their plans to do so publically, yet no FBI
door knock is found.  Until (and unless) a court finds that this
individual has in fact infringed, or are able to obtain a restraining
order in court, they have no rights to take vigalante action against
these individuals, or access their systems without authorization.

Aren't they conspiring to criminal action?

> 
> The RIAA believes that this kind of technological "self-help" against online
> pirates, if done carefully, is legal under current federal law.
> </blockquote>

How can it be legal for the congress to pass a law allowing private
citizens or corporations to act in a way that it would illegal for the
gov't to act.

Imagine a finding that capital punishment was cruel and unusual in a
blanket sense.  The Congress certainly could not pass a law that would
allow a punishment of "being attached to an execution device that could
be anonymously activated by any member of the victims hometown."  How
could the claim "the gov't did not execute this person, and thus it was
not a sentence of capital punishment" pass legal review?

Yet here we are... the gov't cannot restraint free speech (barring a
"compelling interest of the highest order" reason), but they can allow
the copyright industry (through TPM's) to restrict that speech
(specifically fair use).  Further, the gov't cannot deny me due
process.  Yet the TPM's neither are subject to due-process review, nor
even implement the current precedents for fair-use (space, time, media
shifting, archival, excerption...).  They restriction use as if it had
already been adjudicated as infringing.  However, without a finding of
infringment, such use cannot be stopped by the courts.  We have prior
restrain, removal of due process, and a presumption of guilt all in a
nice tidy bow protected by the DMCA -- but NOOOOOOOO the gov't isn't
infringing my rights... they've just outsourced the job.  There's an
interest concept, illegalize police brutality, but allow the police to
hire private guards to beat the prisoners -- "the police never touched
the man."  The clear rebuttal would be that the guard were acting as
"agents" of the police.  Given especially the gov'tal nature of the
copyright monopoly, anyone acting as if to protect that monopoly is act
as an "agent" of the gov't -- and must be subject to the same level of
review and restraint as the federal gov't.

Somehow the gov't is allowing (and supporting through prosecution)
private organizations to infringe rights in way they themselves could
not.  It seems clearly as bogus as the hypotheticals above show.

.002