The new forums will be named Coin Return (based on the most recent vote)! You can check on the status and timeline of the transition to the new forums here.
The Guiding Principles and New Rules document is now in effect.
Why do we let judges who don't understand technology make rulings on it?
joshofalltrades
Class TraitorSmoke-filled roomRegistered User regular
Class TraitorSmoke-filled roomRegistered User regular
Little update...
Sony sent a DMCA C&D to Github which is where Failoverfl0w had it's PS3 tool repository.
Now, check this out... What was being kept here was not Sony's code. This was not a copy of Sony's firmware that had been altered. This was not a custom firmware package that enabled homebrew. This held a bootloader to allow you to boot your own OS, bypassing GameOS altogether. This code could not be used to boot a game, it was for lvl2, not appldr.
The upshot. Sony is basically saying that they don't care if it's your own code (and therefore your copyright). If you use the system in a way that makes them uncomfortable, you are subject to a lawsuit.
This has nothing to do with games, PSN, or even a recovery system in case the PS3 is bricked. They are telling you what you can and can not do with a machine after you have bought it and will sue you if it's something they don't like.
No matter what you think about software, the idea that a corporation has a say in what you do with your physical hardware after you have legally purchased it, and before you have even looked at a EULA for the default (yes, default, since there are other options) firmware is ludicrous. Now, a company has every right to deny me access to their online servers if I am shown to have modified my hardware. But to assert that they have a legal right to hardware that is not being used to access their network is complete folly.
And then there's this little gem, from Columbia Pictures Industries v. Bunnell:
2007 U.S. Dist. LEXIS 46364 (C.D. Cal. 2007), a copyright infringement action, at issue was whether the defendant, an Internet website operator, had a duty to preserve data stored on his website's servers in random access memory. (RAM is temporary memory, as opposed to permanent memory stored on a computer's hard drive.) The defendant asserted he was not obligated to preserve the data because: (1) the temporary data was not under his control; (2) obtaining the data would be unduly burdensome; and (3) handing such data over to the plaintiff would violate his website users' privacy rights. Ultimately, the court ordered the defendant to preserve and produce the RAM data and to mask the users' IP addresses to protect their privacy. However, it did not sanction the defendant or order him to pay the plaintiff's litigation costs. It reasoned that the lack of precedents regarding discovery requirements of RAM data failed to provide the defendant with sufficient notice that RAM data was discoverable. However, this case signals to future litigants that RAM data may have to be preserved for litigation.
Hey buddy, give us all the data from your RAM! You have a duty to preserve your RAM data until the end of time! Never mind that you will need many, many terabyte hard drives in order to do so, and it will basically be impossible to pore over and find anything useful! STORE IT!
Why in the world do we allow judges who don't understand even the smallest thing about technology make landmark rulings in cases? The former case has yet to be decided upon, and so I can't make a judgment call on it just yet, but I have very little faith that it will be ruled on in a forward-thinking manner in the interest of the people for the future instead of a shortsighted ruling that will disproportionately benefit corporations. The latter case, however, speaks to a fundamental lack of any understanding of anything more technologically advanced than a toaster.
We obviously can't force judges to have technological training as a requirement for their job. These rulings are breaking new legal ground, however, and I find it offensive that we are allowing people to decide on things when they don't grasp basic concepts related to them.
joshofalltrades on
0
Posts
Like a forensic or psychiatric person may be an expert witness in violence cases you could have some guy telling these people that they are being retarded.
Both sides can call expert witnesses who will make a compelling case for either side to someone who doesn't understand technical details.
Judges certainly don't understand technology most of the time and so they got to rely on what is told to them, only when what they are being told is by certain people trying to get a certain result, well is it any surprise how things are ruled?
That is like saying you are responsible to have a complete and wholly accurate transcript of every conversation that you were within 20 feet of, in perpetuity, even if they happen to be in a language you don't understand.
The worst bit is that example is probably an order of magnitude more reasonable than the RAM thing.
The issue is you can make an argument that is technically correct, but realistically bullshit. Take the RAM quote. Any expert who isn't willing to lie on the stand MUST admit that it's possible to store everything that goes through your RAM. There's no honest answer otherwise. Now, there are a lot of reasons why this is about as bullshit as asking you to record everywhere your cat has ever stepped for the rest of your life, or document every rock your car drives over, but it's Technically Possible.
It's just realistically an undue burden, and probably completely useless to a court case.
edit: for laughs, anything you do not on the hardware level to record the data in RAM to disk is going to consume RAM. Which will need to be spooled to disk. Which will.. oh, you see where this is going. Half your logs will be your logging process creating the logs.
Indeed, actually both of those cases are logically ('technically' is going to get confusing in this context...) correct. The first case is essentially arguing that certain hardware is technologically distinct / advanced enough to constitute being intellectual property itself, therefore you can patent it and prevent others from duplicating it or altering your product. In extreme cases this includes how you use the product (but that tends to involve special government interest, such as nuclear centrifuges or military hardware). This principle applies to all sorts of hardware and isn't itself bad. The problem is applying it to something eminently generic like a PC or PS3 console is a pathetic argument and should be dismissed because it isn't worthy of being IP / patentable.
The second case is much the same as kildy notes - you can practically store everything in RAM. But in practice it is so difficult, expensive and time-consuming for such little benefit that it isn't reasonable to demand it, except in very particular circumstances. The problem is that the judge has made a precedent without any seeming idea of the effect in practice.
So we aren't saying that - the way courts work - expert advice is what is required. What's needed is a better general understanding of technology...but that's a general problem with a society where the average person is increasingly technology dependent while remaining technologically ignorant.
Teleportation is theoretically possible, I can't prove it's not anyway. Doesn't mean I can do it.
It's a her actually. And while the ruling was indeed idiotic, she received her law degree in 1986. We're not talking about some crusty old dude that grew up listening to The Shadow on the radio. Now, she may indeed to utterly ignorant of how technology works, but she's young enough that Columbia Pictures just made a compelling enough case that she felt requiring a plethora of terrabyte hard drives wasn't unduly burdensome.
At the very least, they should do it to make sure the people providing them with information aren't stringing them along for their own agendas.
Google alone could brief you on most issues in an unbiased way in five minutes or so of searching.
We're not living in the pre-internet age, where intelligent and meaningful research was a drawn out task that required collating many books and papers from possibly, across a large distance. Knowledge is at the tip of your hands nowadays. You only need to actually want to reach out and obtain it.
If you can't be assed to do the minimal work needed to give yourself a basic, unbiased briefing on an issue, you shouldn't hold the office in question, as you aren't doing a crucial part of your own job.
Really though, why pursue litigation? Square-Enix has seen to it that the offender in question will spend an eternity in hell. They can pull strings like that.
For now, it's the responsibility of those with an understanding of technology to make as much of a fuss as possible. The best we can hope for in the short term is increased reliance on expert witnesses. Judges should go to great lengths to ensure both sides provide experts and that a reasonable consensus about facts is clearly and explicitly established. Given enough experts, I can't see there being that much potential for controversy- in the realm of known and used technology, two experts couldn't disagree the way that two social scientists could about, say, psychological theory- the worst they can do is misrepresent the facts. This is problematic but it's the best thing we can really muster.
Ultimately, however, judges tend to have very well-defined world view and it's extremely difficult to shoehorn new concepts into their head. I'm reticent to lay any blame on them for this reason. So they're ill-equipped to deal with technology in the justice system, but they're still the best equipped.
Yes, making recording RAM necessary would be incredibly difficult and burdensome. However, from the judge's point of view it's akin to say a bookie doing all of his business on paper that will be burned immediately afterwards (attorneys and judges love analogies). They want the data to be able to be seen and analyzed, rather than just destroyed as a matter of fact so that a complete picture of the facts can be compiled. The only problem is the only way to preserve the evidence is to also preserve massive amounts of completely useless information as well. Modern litigation does deal with pouring through massive amounts of data already through extensive document review (think having 100+ attorneys reading through every memo and email sent through corporate email servers to determine relevance to the litigation)
As for people saying that the judge should just google and research the tech stuff. They really can't (shouldn't) do their own research into matters of fact. The matters of fact are presented and argued by both sides presenting their evidence and expert witnesses. If the judge and staff just started to research on their own it could almost make the judge him/herself a witness as to the facts (technical feasibility), which can potentially create conflicts of interest. In addition it can shortchange the litigants who rely on their evidence being weighed against the other side's, rather than an unknown presentation of research and evidence being done by the judge/staff.
At the end of the day, do judges sometimes make dumb decisions regarding technical matters? Yes, most definitely. But it's done in a system that is designed to make sure everything is fair and thorough, if one of the litigants doesn't present the evidence regarding feasibility in a compelling fashion, it's not the judge's responsibility, nor should it be, to seek outside data on it.
The amicus briefs filed by the EFF look unconvincing, though. The analogies on this thread so far have been more compelling. It's not enough to say "no it's difficult", surely the sheer magnitude of the difficulty of logging should be briefly mentioned? somewhere?
in theory, it is the job of the claimants to bring forth the technical issues in an appropriate legal context. call expert witnesses, that sort of thing.
there are boundaries where IP law touches on ownership law that are not as simple as some in the tech community would like to paint them.
Okay, after reading through the case, the court is essentially ordering the torrent website to record server logs. The torrent website tried a variety of different methods to wash their hands of any potential wrongdoing, mainly by not actually keeping a record of the server log (which is where their entire "it's in RAM" argument comes into play). They then tried to argue that it would be cost prohibitive to record their server logs, which the court found to be more than a little hyperbole upon cross-examination. In the end, the court didn't say that they had to conjure up the previous server logs, only that, from the time of the court order through the duration of the case, they had to record their logs.
But there are other examples more relevant (and less questionable) to the thread question as well. I'll dig some up later, or perhaps somebody else knows some off the top of their head.
if i had to estimate what percentage of torrent sites is used for piracy i'd estimate somewhere over 90%
any kind of real-world analogue would be shut down immediately. i don't really know why people would expect that the digital version is somehow a fundamental difference of kind.
edit: lawl at the brief stating the logs would be 30-40G a day. What? The largest sites I've ever seen pull in about 3-4G compressed a day. Which is basically what he's stating, but he's trying to use uncompressed numbers to make it sound undue. It's plaintext with really high repeated character counts. It compresses like nobody's business. It's just a pain to keep 4G/day for 2-4 years around.
Uh there are a great many places you can buy and sell things of questionable legality in any city, and we're talking about actual theft there not nebulously defined copyright infringement on what in many cases (relating to torrents) amounts to things that cannot be physically obtained (like movies from 20 years ago and products from other countries). If you only count piracy of current and obtainable products I would hesitate to lay the number at 90%, not arguing the legality or morality of pirating something even if you can't get ahold of it, just picking nits
Luckily, that's not what the ruling said. What the ruling said is that "it's in RAM" is not a strong enough excuse for exempting someone from discovery requirements. Especially considering that TorrentSpy (I wonder why the OP didn't mention that he was discussing the TorrentSpy case) was using the RAM argument as an overly clever dodge to get out of retaining and providing IP logs, as they were ordered to.
Moral of the story: Don't get cute with the judge. They have ways of remedying that.
Edit: DoctorArch said what I wanted to much more completely.
And the long and short of it is that a better title of the thread should be "Why don't geeks try to understand the law instead of whining about it?"
What bothers me is how geeks pretty clearly intentionally distorted the issue. Mainly because if they didn't, it was pretty clear that TorrentSpy didn't have a leg to stand on.
(sigh) I wish search was working, so I could find my old thread on the matter.
The ruling was mischaracterized all over the place. I didn't realize that a bunch of places basically lied about it until DoctorArch thankfully cleared it up on this page, whereupon I immediately realized it was sensible. So your jab at "nerds and the OP not understanding law" is sort of unwarranted, since it seems everyone in this thread had a change of mind when properly presented with the facts.
Things will improve when people realize Ars Technica is not a tech journalism savior.
Except I presented the facts...three years ago.
So you'll pardon me if I'm a mite annoyed that the material facts of the case continue to be misrepresented to portray judges as out of touch and to make TorrentSpy look nobler than they were several years after the fact.
Edit: I'm also annoyed with the attitude that a lot of geeks have that judges don't know anything about technology, and that's why they always rule against technology. Tech is not a "get out of the law free" card.
Well I sincerely apologize for not being a D&D regular 3 years ago.
It's fine for you to be annoyed that tech publications misrepresent the facts. Just don't be annoyed at me, especially after I go, "Hey, that judge was actually being reasonable!"
Or, to put it another way, why did you think initially that a judge would make such a blatantly unreasonable and wide ranging ruling? Seriously, apply Occam's razor to this - is that really the clearest and simplest answer? Because to me, when someone says that a judge, especially one that's been on the bench for some time, makes such a wide-ranging ruling, my first thought tends to not be "wow, what a crazy judge" but "is this really true?"