Controversial Section of PRO-IP Act Cut

I Don't Believe in Imaginary Property writes "Rep. Berman (D-CA) has removed the controversial section 104 from his PRO-IP Act. That section would have multiplied the already excessive statutory damages for infringement in the case of compilations, making the damages for infringing upon the copyrights of a single average CD rise into the millions of dollars. This change came after proponents of the amendment were unable to cite even one case where the statutory damages recovered were insufficient. But don't let the article fool you into thinking that the PRO-IP Act is no longer controversial now that this one section is gone, the act still creates copyright cops who are authorized to seize people's computers."

Time for the old Dead Man's Switch

[Gothmolly]

Nothing Cryptonomicon-esque, just some s/w will do the trick. Sieze away, Mr. Gestapo. All sorts of nice 1s and 0s for you to look through.

Re:

[palegray.net]

You could always TrueCrypt [truecrypt.org] encrypt the contents of your drive to guard against seizure efforts without hampering your own use of the system.

Re:

[QuantumG]

and rot in jail because it is impossible for you to prove that you have complied with the court's order to give over evidence.

Re:Time for the old Dead Man's Switch

[Joe U]

Last time I checked the burden of proof was on the prosecution. They may have fixed that recently, so I could be wrong.

Re:

[QuantumG]

When it comes to complying with a court order to turn over computer files, turning over encrypted computer files is not complying with the order. It's really not that hard.

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[QuantumG]

Who says the evidence will incriminate you?

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[digitrev]

No one. But you can easily claim that, with all the various laws on the books, including laws that haven't been examined in years, that you could breaking laws you don't even know about. Hence, pleading the fifth.

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[greedyturtle]

Run linux on it, and you could be stealing from this company [sco.com]

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[calebt3]

Obviously someone thinks so, or they wouldn't be taking your computer in the first place.

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[QuantumG]

WRONG. Maybe they're investigating someone else's crime and believe your machine has evidence on it.

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[calebt3]

Likewise, you could claim that handing over the keys would be self-incriminating for something they are not investigating yet (a few illegal songs yourself, maybe?).

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[QuantumG]

illegal songs

Please, define that term.

Although I would contend that many songs should be illegal.. including this one [gnu.org], I don't think that term means what you think it does.

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[calebt3]

songs that have been downloaded in a manner that violates copyright law?

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[HTH NE1]

If they need someone's files to convict someone else, they can grant immunity for anything found in those files that may incriminate the owner to negate the Fifth Amendment barrier.

However, they still have sneaky tricks, like only granting immunity at the state level and not federal, or not international so you're effectively barred from travel to certain countries for, say, having cartoons of a particular religious leader. And they'll still put you on their radar in case you acquire any similar incriminati

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[QuantumG]

Plausible deniability is a two way street dude, they can't prove there is more information on the drive and you can't prove there isn't. And no, the burden of proof is not on them.. it's on you.. the court has ordered you to turn over records relating to X, if you refuse to turn them over, you are in contempt. Unless you can convince the judge that the records never existed then you're screwed - it's just as bad as if you had shredded them.

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[siddesu]

Is that so? I am not familiar with the procedure, but isn't there a need for a request to be specific? I recall that at least in one case covered here of RIAA suing someone for whatever, the sued party was able to put limits on the scope of the inquiry. If you cannot figure out the scope of a search/seizure, could you probably argue it is unreasonable, at least in the US?

Why can computers be searched at all?

[jgoemat]

In a civil case, don't they usually subpoena records? They don't come into your house and search for them, you are simply expected to hand them over. Say for instance that they subpoenaed letters I had received over a certain period. I would check my files and turn over any letters that met the criteria, along with a declaration I sign under penalty of perjury that I've turned over all relevant documents. In the RIAA case they get to mirror an entire hard drive and search through all contents. There w

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[The Master Control P]

The main point of TrueCrypt (as I understand it) being that it's impossible for the prosecution to provide any evidence that what they see isn't everything you've got. No evidence you aren't complying = no leg to stand on.

Me? I'd keep anything "they" are after on a mini-sd card (hell, they're so small you can almost legitimately claim that you lost it). If all else fails and you get a suprise warrant at 3am, you could even stick it up your ass as a last resort. As long as you don't do something stupid li

Problem:

[BalorTFL]

Sounds like a great idea, but until they come out with 128-gigabyte miniSD cards I'm going to need that goatse guy for a roommate. :(

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[vuffi_raa]

The main point of TrueCrypt (as I understand it) being that it's impossible for the prosecution to provide any evidence that what they see isn't everything you've got. No evidence you aren't complying = no leg to stand on.

providing encrypted files is compliance so long as you have the decryption key provided as well or can show an attempt to provide the key- the fact of the matter though is that if all of your data is encrypted the cost for discovery in a civil case would be so high that it would be ridiculous to pay for it (that would be the burden of the litigant and not the defense- defense would only have to provide the data post discovery in compliance with the submission by the litigant (or opposing counsel) so you co

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[DKlineburg]

That is why you have two encrypeted files. One you give them the password to and it is some, *GASP* reveling photo's completly legal, but you don't want people looking at. Are they going to check the byte valus of the data verifing that you gave them ALL of the encrypted stuff? I understand with new encryption software it will prompt for a password, if A is given you get A results, if B is given you get B results. Just set up so that they see A as said above stuff to be encrypted, but not jailed over.

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[vuffi_raa]

there is no prosecution in a civil case

Re:Time for the old Dead Man's Switch

[hedwards]

Passwords, pass phrases and keys are, for better or worse, considered to be protected by the 5th amendment.

Unless law enforcement or the copyright holder can crack the security on it, there is no way that they can compel a person to hand over the files at this point.

Re:Time for the old Dead Man's Switch

[QuantumG]

Do you have any case law to back this up or are you just talking out of your ass? Seriously, the courts see it no different to requiring you to hand over the keys to a filing cabinet. You're free to refuse, at which time you are in contempt of court and will be spending the remainder of your life in jail, except for every 30 days, when you will be brought before the judge to be asked if you are now ready to hand over the keys.

or the copyright holder

Huh? What do you think we're talking about?

Re:Time for the old Dead Man's Switch

[Cairnarvon]

http://www.news.com/8301-13578_3-9834495-38.html [news.com]

So yes, case law does back it up.

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[QuantumG]

Are completely unaware of the difference between civil and criminal law or are you just disingenuous?

Re:Time for the old Dead Man's Switch

[Wordplay]

No, he's informed. What's your excuse?

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution [wikipedia.org]

"The U.S. Supreme Court has ruled that the right against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924))."

And more specifically,

http://www.sorrelsudashen.com/papers/Fifth_Amendment_Right_Against_Self_Incrimination_in_Civil_Cases.pdf [sorrelsudashen.com] (pdf)

McCarthy v. Arndstein, 266 U.S. 34 (1924) Privilege against self-incrimination under the Fifth Amendment "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it."

If copyright violation didn't have a criminal component to it, you might be right. But it does, particularly since the DMCA specifically criminalized copyright violations of digital material.

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[Wordplay]

Laaaaaw. It means what it means. You can't be compelled to offer testimony that may result in a criminal charge.

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[mazarin5]

Testimony, not evidence. Consider that you can be compelled to give a blood sample for DNA evidence. They can even arrest and restrain you and forcible extract the blood. This is not considered self incrimination by the court. A password is not testimony, it's necessarily to the acquisition of evidence.

Of course, this must have been tested at some point. Are there any law scholars that can provide a more specific example?

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[Wordplay]

Passkey-as-testimony was covered a couple of parents up; the precedent's been set. This subthread is from QuantumG suggesting that the same protection doesn't apply to civil court.

Re: DNA vs. passkey, the generality seems to be that in security terms, "what-you-are" or "what-you-have" factors are evidence (they can be taken with a warrant) but a "what-you-know" factor is testimony and cannot be forcibly extracted from you (Fifth Amendment).

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[mazarin5]

Ah, so it was covered. Is it just that one judge in that one case a few months ago? I figured it would have been tested and set well before then. I hope his ruling is the one that sticks, but I just don't see that happening.

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[Wordplay]

There's still considerable debate, so I'm sure it'll go through a few more rounds.

I'm inclined to agree with the current state of it, though. Admitting you know the passcode proves you have access to the documents, and access to the the documents is the incriminating bit, so seems pretty clear to me. Luckily, I have a very short memory, and can very rarely remember any of my passwords under the kind of pressure that this sort of litigation may cause.

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[edumacator]

I'm always surprised at how quickly people jump to ad hominem attacks. Even if the grandparent to this post was completely wrong, which he isn't, you immediately accuse him of being a moron or a sinister plotter. All he's doing is disagreeing with you. I would hope we could still do that civilly.

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[edumacator]

I did. He's not. He disagreed with you. I might add at times people have even asked for help finding material to help them understand your point. Your replies tend to be sarcastic and mocking rather than engaging in an attempt to educate. I don't know anything about law and the finer points elude me, but it seems like you truly do, so I would suggest instead of calling people retards and morons, you might respectfully engage with them and try to show them where they are getting something wrong.

Just a thoug

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[kylehase]

I heard this story before but if the ruling was overturned by a higher court then it would no longer hold. From the link "(Judge) Niedermeier tossed out a grand jury's subpoena" so it looks like this is quite solid. And it's very unlikely that the fifth amendment will be amended.

Also as a practical matter

[Sycraft-fu]

You can use the favourite trick of the Bush crew and "not be able to recall" the password. I'm going to bet this would be fine. After all, people forget their passwords all the time (all the damn time, I would know, I do tech support for a living) and you can't be forced to give up what you don't know. If you do soom looking through cases, you'll see that the whole "I don't recall," type of thing is not that uncommon. You get the feeling at times that the person is lying, but, well, you can't prove that. It

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[nguy]

Seriously, the courts see it no different to requiring you to hand over the keys to a filing cabinet

Seriously, they do.

As well they should. If a court doesn't get the keys to a file cabinet, they can break it open, settle the issue, and send you a bill. With encryption, if the keys are actually lost, there's no way to "force open" the file cabinet, and you'd be put in jail for not complying with a court order that it would be impossible to comply with.

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[scruffy]

Isn't it part of the Miranda Rights?

"You have the right to remain silent."

I would think the SCOTUS would have to revisit Miranda to make this, giving up passwords, a requirement. Otherwise, I am within my rights to remain silent.

Good example.

[palegray.net]

This is a good example of the fact that both major parties play these games with our civil liberties. As much time as people spend bashing the Republican party over privacy invasion and big business backroom deals, it's good to remember that the Democrats play the same games every day. Perception is a funny thing.

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[Anonymous Coward]

You're right. Both parties are in the end totally screwed. America is well on it's way to being that corporate fascist state that many have warned it would become.. One nail, one brick, ..one more law at a time.

Keep letting it slide boys and girls... That nice warm blanket is slowly being pulled over your body.

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[Idefix97]

Berman is just a shill for Hollywood.

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[TerranFury]

Didn't he remove the excessive bit? Or is it that he's responsible for the original bill, and is simply backing down a bit?

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[calebt3]

Rep. Berman (D-CA) has removed the controversial section 104 from his PRO-IP Act.

How could statutory damages ever be insufficient?

[John Hasler]

How could statutory damages ever be insufficient when the copyright owner has the option of proving actual damages?

Re:How could statutory damages ever be insufficien

[palegray.net]

IANAL, but IMHO, and it may be soon to tell, given current circumstances, but notwithstanding alternate outcomes, that I have absolutely no idea how to respond to your question. But look at the silly monkey!

Re:How could statutory damages ever be insufficien

[monxrtr]

The Statutory damages are already unconstitutional. Appealing this all the way to the Supreme Court will completely invalidate all copyright law in whole. Yes, they are *also* unconstitutional on not contemporary limited length of term.

http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution [wikipedia.org]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

There's a whole load of rulings which can be added in support, starting with excessive punitive damages more than three times actual damages being unconstitutional. $150,000 for a $0.99 is clearl

Just the latest in a long list of malfeasance ...

[ScrewMaster]

Berman should be forcibly removed from office for the things he's already done. They can take Howard Coble and Orrin Hatch along with him. We the People have no use for them.

Re:Just the latest in a long list of malfeasance .

[Obyron]

We the People keep reelecting them. Blame California, North Carolina, and Utah. (and blame Canada)

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[aurispector]

Amen brother. It's hard to believe they keep electing him, although the nuts and bolts politics involved probably make it impossible for the local party to field any other candidate. He gets oodles of money funneled to his causes through various third parties (the big media corporations), neatly bypassing campaign funding laws.

If it's a district in which electing a republican candidate is basically impossible then we do indeed have only ourselves to blame. Or the pavlov-trained monkeys living in his dist

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[monxrtr]

Geek Solution:

Write a program to fight gerrymandering by randomly drawing district lines based on population dispersion. Statistician + Programmer = Solution. Let's see the results, what maps would look like, then we can force all politicians running to support it with a national marketing campaign called The Contract Against Incumbent GErrymandering (C.A.I.G.E.)

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[Shagg]

He gets oodles of money funneled to his causes through various third parties (the big media corporations), neatly bypassing campaign funding laws.

The (D) next to his name pretty much stands for "Disney", not Democrat.

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[Deagol]

Don't blame *me* for Hatch -- I vote against that fucker every election he's on the ballot. I'm one of maybe a dozen blue pixels on one of the reddest states of the map. Sometimes I wonder if I should sign up with one of those vote trading sites, as my votes here are pretty much spitting in the ocean.

WalMart

[Anonymous Coward]

making the damages for infringing upon the copyrights of a single average CD rise into the millions of dollars.

...and yet, if you just physically steal one, no one cares near as much. Whatever floats their boat, I guess.

Re:WalMart

[bky1701]

Of course. Physical theft hurts businesses, especially small ones. On the other hand, piracy threatens the control of the media giants. Who do you think has more lobbying power?

Re:Copyright Cops Maintaining an environment of fe

[Arterion]

Fear is the Antichrist

I thought fear was the mind-killer.

I remember

[hyades1]

"Yes, Billy, it's true. The United States wasn't always a fascist dictatorship. Actually, the proper term is oligarchy, but I won't bore you with all that stuff now. Anyway, there was a time when the people in office actually cared, some more than others, about the ideals that made it a good place to live. And, no, there was no invasion. Our people just gave it all away, a little at a time, by always voting for politicians who promised to make the country a safe place for children and kittens. It's safe now, Billy...just as long as you do exactly as you're told."

Re:I remember

[Omestes]

Our people just gave it all away, a little at a time, by always voting for politicians who promised to make the country a safe place for children and kittens

I know I'm replying to your rather flippant remark with something serious, but why are we doing this? The other democracies in the world seem to have veered in a more liberal direction (liberal, not by the American definition). What makes the Americans MORE susceptible to welcoming a tyranny with open arms? I would have thought it the opposite, being one of the most violently individualistic countries on earth.

The average American, it seems, is the epitomy of sheep, anti-education, anti-freedom, and pro-tyranny, and not just our tyranny, but the tyranny of everyone else too. How did this happen, for a large part our founding fathers were ideal freethinkers (minus Adams), and liberals (again in the non-modern American sense), but somehow we've turned into the modern Soviets. This confuses the hell out of me.

How the hell did Europe (and Canada) beat us at our own, original, game?

How did France, Canada, the Nether

Re:

[hyades1]

Wish I could give you an answer. I'm Canadian, and I don't much like the direction my country is heading in at the moment, either.

I've forgotten what our Prime Minister looks like, it's been so long since he pulled his face out from between Bush's ass cheeks.

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[moxley]

This is no accident. There has been manipulation and paranoia based behavior control.

"We were attacked" "by evil terrorists" (the fact of who those "evil terrorists" actually are or whether it was some bullshit storybook conspiracy that completely falls apart and lacks credibility if you have half a brain OR was a manipulation in the first place doesn't matter because the effects are the same with how it is being used).

People are being made to feel like there is danger coming at them from all corners at all

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[Omestes]

I don't think the current atmosphere is to blame, though it exasperated the situation. I came of age at the tail end of the cold war, and we were still ruled by the same fear as we are today (albeit more based in reality), In the 90's, after the end of the cold war, we still managed to be ruled by wankers (Clinton, and the birth of neo-cons), but this was not fear based wankerism. Bush I and Clinton were both in a time of naive optimism, but we STILL voted the the extreme right into control.

Really the do

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[ultranova]

The fact that this country would even talk about being okay with indefinite incarceration without charge and torture (let alone actually allowing or making it fucking policy) is disgusting and unbelevable and would have never been possible without this scheme.

Millions of slaves, many of which belonged to those very founding fathers who wrote your constitution, might disagree.

The simple fact of the matter is that the US has always had a shining outside and rotten core. This is understandable: the reaso

Re:

[Greg_D]

Other countries are more politically active and have more than 2 political parties. In America, you're either for the Republicans or for the Democrats and whichever side you're on, you're convinced that the other is evil and out to destroy your rights.

Of course, that makes you only partially right. In reality, both parties are evil and want to destroy your rights, so in the end, you're only supporting the evil bastard who has the best campaign manager.

Re:

[t0rkm3]

òô

Really, eh? UK is beating us at being libertarian? The most observed society in world where you can be compelled to offer up passwords to encrypted data is more free? Interesting conclusion.

Canada the bastion of freedom? A place where freedom of speech is abridged regularly? e.g. the Kempling case, Westboro baptist church denied entry, and defacing the Koran is punishable by law?(Ezra Levant) Where you can be prosecuted for hate-speech for calling Americans bloodthirsty? (University of British C

Re:

[Omestes]

I didn't call the Non-American Western countries "glowing beacons" of freedom, did I? Nor did I claim they were libertarian, only classically liberal. I admit they have some problems, but not as many, nor on as slippery a slope as we do. We're not the great satan, nor saint, but we seem to be working on the former rather than the latter.

What was the last country Canada invaded under flimsy pretexts and outright lies? When was the last time France broke some nations sovereignty to bomb the shit out of

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[protomala]

When I see news like that I think: I'm glad I live in Brazil, even with all it's problems.
What is happening with america? I know it was never that land of freedom movies talk about, but sudennly it appears people are leting all the fears take upon their brains much like in the the wall (pink floyd) videoclip.

Re:War on Copyright

[QuantumRiff]

The sad thing is, that 1% of the population is already in jail. The highest incarceration rate in the world. But we think were safer. Do you think a 10-fold increase in people in jail will lead to an overhaul of the system, or just become a nice way to ensure lots of jobs as Prison Guards for the local economies?

Re:War on Copyright

[wk633]

1% of adults, not of the general population. Not that it affect your point.

Re:

[QuantumRiff]

Thank you, you are correct. I imagine things would drastically change if a large percentage of children got locked up!

wait let me guess... soul is a lawyer

[gearloos]

Translate this into a little better english... WTF did he say? she say?

Re:

[McGiraf]

Hi AC, this is the IRS.

did you pay your taxes on this $100,000,000 per distrobution of your likness?

what about basic necesities?

[hondoslack]

Oh dear, heaven forbid a few ultra rich individuals be deprived of a few cents per "stolen" song. The 4,000,000,000 people that go to bed hungry every night wouldn't need any of it anyhow. And as for the US becoming "fascist", give me a break. Go live in Cuba or Venezuela for the real deal. Although things can change, and they have, this is still a country with a constitution protecting more freedoms then most countries around the world.

Oh sure, that has nothing to do with this discussion, right? Time = mon

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[ryu1232]

People already share my paycheck online, it is called electronic tax filing.

This should be alarming

[sltd]

They're beginning to make compromises. With this controversial section removed, it's just that much closer to becoming a law, which is bad for everyone.

Re:

[urcreepyneighbor]

They're beginning to make compromises.

Not really. It's a standard tactic.

With this controversial section removed,

It was born to die.

it's just that much closer to becoming a law,

Bingo.

which is bad for everyone.

Not everyone, just most.

Re:

[zotz]

"They're beginning to make compromises. With this controversial section removed, it's just that much closer to becoming a law, which is bad for everyone."

Bingo! Bingo! BINGO!

Mod parent up!

Which is why I say we need a copyright offensive:

http://zotzbro.blogspot.com/2007/04/some-thoughts-on-copyright-offensive.html [blogspot.com]

That way, after we are done compromising, we are in a better state than when we started, not in a worse state.

Your comments very much appreciated.

all the best,

drew

authorized to seize

[nurb432]

Time to encrypt.

What ever happened to that case that was to claim that the 5th amendment also covers your digital data?