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Right to Privacy: MPAA vs TorrentSpy (BitTorrent P-to-P)

For computers on the internet:

(1) Can, or should a judge be permitted authority to require users to do additional activities at own cost of time and money at risk of legal penalties?

What caught my eye for this question was a quote: "In May, U.S. Magistrate Judge Jacqueline Chooljian ruled that TorrentSpy must preserve server data logs held in random access memory, or RAM."

Were we to claim that RAM is not something everybody normally preserves, that is more the gist for this question. This question is not about things normally done, such as for the making of backup tapes, and a judgement that orders preservation (or non-destruction) of hard media that could be considered evidence, and brought into a courtroom for a jury to review, such as of electronic mail used to conduct illegal activities. This question is about doing the unusual, out of ordinary, on top of everything else one has to do to maintain operations (and who has to pay expenses for additional workload?)

(2) How specific or not should a judicial order be, consider issuances of warrants as a similar example. Consider quote: "another judge had ordered them to keep server logs, user IP (Internet Protocol) addresses and other information."

For example, while IP addresses are defined differently than IPX addresses, this remains a general collection of which each of us are members, what is it, millions, billions? As for "other information." I am not sure anyone could be more vague.

(3) States' Rights. This is an example about internet operations, which is rather global. Included in the case are references to local agency in US applying orders for behaviour in a foreign land. How much of that can be useful, approvable, tolerated, or not? When all governments agree that is one thing. Where there is disagreement can flow problems, right?

(4) Right to own what. Set aside for a bit the actual case (p2p) and methodology, which appears unresolved anyway (re: "default judgement"). Address the right to copyright, and to own, and to be able to use something, when and whereever, or how many restrictions should be applied or right to use someone else's stuff for how long.

(5) Right to privacy. Snooping|Fishing. To what extent would you permit governmental personalities and businesses to have freedom to review your stuff any time they want. The same rule should apply of course to the worst criminal known, as to the most respectable and favorable citizens of the land, and vice versa, right?


     Copyright Case Against TorrentSpy
     Wednesday, December 19, 2007 5:55 AM PST
     Grant Gross, IDG News Service
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Wow, hitting all of them, at same time, so quickly! Wow!

1> It sounds like you're thinking that it means that the information has to be stored in RAM which seems cost prohibitive, which I assume is your point.

My interpretation is that it can be that, or there could be an 'out' to generate a new application to constantly preserve RAM. My additional emphasis would interpret the making of 'permanent' of that defined as temporary. In that aspect traditional temporary files would be included, simple example of Microsoft platform could be c:\temp, email example could be folders called 'draft', that get continually updated and overwritten. A stretch, but not too far, is to preserve all network traffic, all the gory details. The point being about the unusualness of the demand being made, which may well indeed be 'for the good cause'.

2> unless it's taken out of context, I'm pretty sure that it isn't legally acceptable

My personal assumption was that it was condensation by the reporter to cut down the length or article. However, I have seen warrants that actully do say it that way, and since the warrants were upheld upon appeal one must admit it is indeed leagally acceptable, at least for some of the time.

> a warrant allowing police to search for drugs can't be worded "to search all public areas for drugs and stuff."  

Yes, similar example, so they can look for examples of porn or whatever, review tape of your wedding, etc.

3> This is the very thing that makes prosecution of internet crimes so difficult...

But not to distinguish internet so unique from everything else, there are processes for extradition, for example, and still there can be agreement to comply or not, for variety of reasons, such as one country uses death penalty, other is against the criminal activity, but also against the death penalty.

4> groups dealing in intellectual property are trying to have enforced is that they do not actually SELL something to people but rather are effectively LEASING it to them with specific limitiations,

Yes, but.

> for instance, you have access to something for personal use and strictly for the copy you "purchased"...

The earlier argument was for zero additional copies to be made, ever. Judicial response has us to point of being able to have at least one copy. You/we can still be faced with the (unread) EULAs that not even the company making them up in their leagalize can interpret or understand, or that (a few do) spell out that you can make a copy, perhaps even suggesting how to go about it. However, their assumption on this being a binding agreement upon you when you install a product fails in courtroom at least because you canoot agree to something you do not understand, which is both the EULA and the purchased item. You have to be able to possess the product in a working condition (installed) before you can decide whether or not to agree. It seems that there's so many computers around these days that judges have actuall been seeing them and using them and are getting some first hand information on what used to be only of technobabble in presentation papers.

My recollection is that this form of pro-copy argument began with the audio cassette, which was open, which became successful for everyone, vs the 4-track and 8-track tapes some may not believe to have ever existed. A major subsequent event was the videotape, VCR vs Beta. In short, while internet may be new thing, CDs and DVDs new technology, these forms of issues are not really all that new, before satellites we even had electronic pulses transmitted over copper, including for business and even personal telephones.

5 >  they definitely should not be able to come in through the internet connection to check your computer...

RIAA and some others do, I'm not sure if MPAA has been caught yet.

> "Probably cause" can't be used to say, for instance, "you live in this neighborhood so must have drugs and we can search your home because of that"...

Actually that is and has been done locally. I can't think of example offhand. Maybe at least the stops for probable drunk driving (neighborhood), traffic for interstate travel (banned plants or illegal immigrants), and smoking (getting banned in some communities both inside and outside of the home). One has to review that the neighborhood maintains its economical value for personal investments.
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dagesi

>...to generate a new application to constantly preserve RAM.<
Accept obviously this new application can't use RAM or it would just add itself to itself creating an infinite loop of stored info...

>Yes, similar example, so they can look for examples of porn or whatever, review tape of your wedding, etc.<
I'm pretty sure that's not the case in the states... Pretty sure you can be somewhat vague in a specific sense (drugs and paraphenalia (without explaining WHAT paraphenalia)) but, if for instance, your search intent were to look for a shotgun, you can't say "and stuff" and then open up the person's passport which you find in a drawer in the hopes of discovering something else...

>...such as one country uses death penalty, other is against the criminal activity, but also against the death penalty.<
True, as an example, Canada will extradite to the US but not if the crime being extradited for might involve the death penalty... and clearly some countries won't extradite at all... And since you can't lock those countries off of the internet too easily...

>...zero additional copies to be made, ever. <
Clearly, there's an instant hole in that type of argument if someone wanted to argue it to extremes...
What medium does the brain use to store information?  How do you prevent a person from having a "song" (or whatever) stored in their brain...?  How long before someone manages to create a biological storage device that stores in the same quality as the original?  Then what level of copying would be restricted.
It's sort of like the stories where machines become so advanced they become life forms - where's that line if it exists?

>... the stops for probable drunk driving<
Using this one as an example, they can make spot checks and incidentally snag someone who, after being stopped, they can determine is driving drunk... or they can pull over someone acting in a way that gives them "probably cause"... but they can't, at least here, just elect to pull someone over with no cause in the expectation of discovering a criminal activity being committed.
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> it would just add itself to itself

Is that what they refer to by 'paradox'?

> I'm pretty sure that's not the case

Sorry, hate to disillusion you, but...

> passport
Actually, that makes more sense to me than other stuff, since such a warrant would also typically include a form of traffic, the buy/sell of contraband. But suppose they were after porn and stuf, then before looking under the bed and in drawers they tried to find a gun rack to confiscate and examine in detail later on

> example, Canada will extradite to the US

The alternate applies as well. It may be ongoing, but a Mexican is on death row in Texas, The Mexican government claimed he was denied access to their embassy, for which the two countries had an agreement. US government denied any applicability, then caved in and agreed, I think to extradition to Mexico or something, if not merely to a retrial, then Texas said they were local government and did not have to agree to toe the line with their border state.

> Clearly, there's an instant hole in that type of argument  [0 copies]

Not to many, for both the EULA, contract, and court, using 'logic' you referred to by EULA's 'L" meaning license, not 'product'. Judge may make note that package is mass produced with a 'product code' and have relative actually using it, so may not really accept the 'license' argument, especially since the 'A" in EUAL meaning agreement is invalid and not legally binding.

> How do you prevent a person from having a "song" (or whatever) stored in their brain...?  

Hmm. George Harrison was convicted of that. There came an issue of 'intent' and the verdict presumed he did not conciously copy, but that it was probably his subconcious doing him in when he was not looking, so 'guilty' as charged.

> How long before someone manages to create a biological storage device that stores in the same quality as the original?

Never. I say: "No two alike" (even 'identical' twins) so it cannot be done. Major difference to me between artists, and between live concert and studio recording, even digital and analog. Still, some seem to have more aptitude at 'impersonation', so perhaps we can retain a little superstition.

> where's that line if it exists?

<rechecking> see the other TA, P&R, I did not add them to this one, although there are the philosophical POVs on ownerships and such. Do you 'own' your android or clone (science A?)?

> How do you prevent a person from having a "song" (or whatever) stored in their brain...?  

More interesting elsewise, where did idea, even 'song', originate? Did only a single brain create it, or can idea be somewhere else, brain tunes in, then fingers go into motion. While some songs are said to be added to as they go, some are said to arrive in total.

> Then what level of copying would be restricted.

I fear that it is about money. The haves best their lessers, the have-nots. Those who do not use own name but hide behind 'business' name so that they are not personally to be held accountable. I think of similar issue for trademarks, how a family can have a restaurant for years using own name, then a business comes along and wants to use their family name, so sues them and courtroom answer is that people cannot use teir own name. Among examples is McDonalds.

> but they can't, at least here, just elect to pull someone over with no cause in the expectation of

I'm not sure. That's been changing too much, and some of that may differ by locality, distinguished from national. My opine is that it has to bea reason, even if they don't figure one out until days later (but of course do not tell that part). Bad Example is that since transport of illegal drugs and illegal aliens often uses highways, then they can pull over anyone who decides to drive on any road. At least an attempt at some excuse. Implementations under the Cheney administration is to deny any ability of oversight to any administrator from top to bottom. The police know what they are doing, let them, get rid of red tape, they need no excuse to haul you in and to work you over. While they still cannot always force you to give dna, semen, and breath, if you refuse to take a breath test you lose the right to drive, and some still say justifiable need to insert fingers into holes between legs and take pictures of what dress used to cover.
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(5) Right to privacy. Snooping|Fishing. To what extent would you permit governmental personalities and businesses to have freedom to review your stuff any time they want. The same rule should apply of course to the worst criminal known, as to the most respectable and favorable citizens of the land, and vice versa, right?

I've been waiting for legislatures to explicitly address this issue.  There desperately needs to be data-ownership laws.    Biometric data, for example, should be owned by the person with the body but that person should feel free to use it whenever they want to confirm their own identity.  

Who I have decided to call and what I had to say to them should be owned by ME.  Under some very limited circumstances (search warrant) I should be forced to allow it to be examined.  

These rules should be explicitly defined in laws.  These issues are relevant at the level of PRINCIPLES (i.e. at a constitutional level of abstraction).

Our current method of defining these things on an ad hoc basis is a mistake.
Here's info on regarding search warrants in New Hampshire, US...

 Proof by affidavit (supplemented by oral statements under oath) having been made this day before (name of person authorized to issue warrant) by (names of person or persons whose affidavits have been taken) that there is probable cause for believing that (certain property has been stolen, embezzled, or fraudulently obtained; certain property is intended for use or has been used as the means of committing a crime; contraband; evidence of the crime to which the probable cause upon which the search warrant is issued relates.)

    We therefore command you in the daytime (or at any time of the day or night) to make an immediate search of (identify premises) (occupied by A.B.) and (of the person of A.B.) and of any person present who may be found to have such property in his possession or under his control or to whom such property may have been delivered, for the following property:
(description of property)


and if you find any such property or any part thereof to bring it and the persons in whose possession it is found before (name of court and location).


>George Harrison was convicted of that.<
That was in reference to a "stealing" as in "he just wrote something I already wrote and copyrighted" type thing, wasn't it...?

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BobSiemens

1> Gun stores, for example, are required to keep records

That's apples/oranges, about existing laws, processes, procedures. Not a good example, but suppose there was no such law. It is presumed there are guns sold illegally, so someone goes before judge. Judge then demands new records for everybody visiting establishment and all of their activity, including everything owner and staff already know, having record in their brain. Not asking here about the likes of determing that there are security cameras, attached to videotapes, and asking that the tapes be preserved for consideration of their having potential evidence.

1> Sure, internet sites tend to keep data that they need but sometimes that needs to change.  

Open question on the side is about the telcos,the ISPs, turning over anything/everything to feds without a warrant. For some strange reason, some telcos seem to want to cooperate and most congressmen want them held (potentially) liable, while of course the Cheney administration wants ability to do anything they want without a warrant and don't want ISPs to think there is any excuse to not let them snoop. Different issue, but perhaps relevant to some

1> I'd say "arguably yes"

Good. I disagree, and that is how 'discussions' can form

2> While there are plenty of non-criminal ways of using TorrentSpy

It is my presumption, not a know-it-all, just using that as example to launch question, not as a case or specific product to find in fovaor of or of disfavor

2> Pawn shop owners probably have to keep records also.

Like the gun example, they already do. Major organizations also have requirements for email and purchases and contracts.

3> I don't think anyone has really come up with a plan

Plans are not lacking, it is more the achievement of agreement

4> the EULAs that everyone ignores

Thank you
Confirmation, on 'ignores'. One cannot legally enter a contract in ignorance of content matter, hence no "agreement" established by mouse click.

> you hereby grant any member of Sony.COM

Exactly! [although its twisted, this could benefit from a twist
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BobSiemens,

5> Biometric data, for example, should be owned by the person with the body

Exactly!
And that is already used and abused. Consider at least the more popular fingerprinting and DNA collecting. It can be and is voluntary. It is also forced upon citizens whether they like it or not, independent of religion. Returning to relevance, the question is not about existing legal requirements concerning actual crime, but seeking to find unknown crimes in a common barrel, susch as looking for person would could become a potential terrorist, and that translates to anyone in america involved in the profession of teaching (actually, their organization has already been labelled as terrorist by the administration, that's already beyond the 'potential' part of the question)
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dagesi > That was in reference to a "stealing" as in "he just wrote something I already wrote and copyrighted" type thing, wasn't it...?

No, or as I recollect, it was a similarity to notes and to beat. Not same song, no overlap on words, and no known intent or even of actually knowing anything about the original. It is left as presumed he'd heard it, whether anyone remembers that as an event or not.
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For anyone interested in the last one, here's some search terms, after 8 years the non-author...:

"He's So Fine" is a 1963 song written by Ronald Mack

George Harrison was ordered to pay $587,000 to Bright Tunes Music (the owners of the song's copyright) in 1976, after a judge found him guilty of "subconscious" plagiarism of "He's So Fine" in regard to his 1971 hit "My Sweet Lord".[1] The Chiffons would later record "My Sweet Lord" to capitalize on the publicity generated by the lawsuit.

http://en.wikipedia.org/wiki/He%27s_So_Fine

This case found the late George Harrison liable for copyright infringement; given Harrison's popularity as one of the Beatles, it is probably the most commonly known music plagiarism dispute. The court's tone is almost apologetic in determining that Harrison's use of the melodic kernels of plaintiff's universally popular number, in the same order and repetitive sequence and set to "identical harmonies," compelled it to conclude that Harrison unconsciously misappropriated the musical essence of "He's So Fine."

...the court's reasoning, implicated him; it was akin to copying a mistake...
...The harmonies are not "identical;" ...

... The musically illiterate Harrison didn't create the score of "My Sweet Lord," a standard melodic analysis of which led the court to its decision. Harrison hired an educated musician to work a couple of banal melodic ideas set to two chords into a marketable visual representation of the song's real locus of economic value: Harrison's quasi-improvisational recorded performance that was entirely responsible for the popularity of this number....

... The opinion (footnote nine) alludes to Harrison's belief that his song is that which he sings at a particular moment and not something that can be captured on a sheet of paper. The court gave this insight short shrift...

... Had the court acknowledged ... the commercial value of a song l... depends far more on a specific performance of it than on rudimentary musical elements reduced to notation, it might have reached a less speculative conclusion ...

The late Harold Barlow, known among music librarians for publishing indexes of themes of major instrumental and vocal works (which raise interesting scope-of-copyright issues themselves) testified for George Harrison.

http://ccnmtl.columbia.edu/projects/law/library/cases/case_brightharrisongs.html
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It's not unusual for the government to require specific record-keeping practices -- every business spends a lot of "its own nickels" to maintain financial records that are related to paying taxes; that's a government-imposed expense that every business accepts.

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Question is what happens afterwards, in addition to that 'normal' recordkeeping, what happens outside of the legislative process using the judicial system, who is interested in 'evidence' preservation, but evidence, of value or not, is not in a presentable format.

Suppose Experts-Exchange does not record our IP address. Judge suspects we may know something about crime, so asks experts-exchange to supply every ip address that hits its website, for every instance, forever. Take that aspect and amend at will. EE has to have some knowledge of our address sometimes or we'd never communicate.
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<<<
1> Gun stores, for example, are required to keep records
That's apples/oranges, about existing laws, processes, procedures.>>>

I don't agree.

As a societal matter, the standard is that threats to society (e.g. the threat to safe ownership) may be tracked.  Gun store records fall into a standard category.  It's easy for the legislature to make a ruling.  

We know that crimes are being committed via TorrentSpy.  Moreover, it is the main usage of TorrentSpy.  This places TorrentSpy in the position of abetting crime.  Why is it unreasonable to say "We won't shut you down because there is legit usage but you must tell us who is using your service for crime?


=============================

Consider an artist who has made a great album.  They get $1 on the sale of each CD.  The sale of CDs has been down for several years in a row partially because of 'file sharing'.  Should this artist get $250,000 less money because people take his stuff for free?  

>>Judge suspects we may know something about crime, so asks experts-exchange to supply every ip address that hits its website

That's not a fair comparison because "suspects we may know something about crime" is VERY different from "KNOW that crimes are routinely committed and we are helping to commit them".


A much better analogy related to the fact that witnesses may be given a subpoena and compelled to testify about crimes that are witnessed.  The only wrinkle is that the judge is ordering the potential witness to track what is being seen because society has a compelling need to protect intellectual property.
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BigRat > a law which will enable every doctor, welfare officier or other official access to everybodies children - ie: a doctor can

I used to have a problem with that, the parts about those knowledgeable in medicine, vs those attempting religion practise or something else. For some reason they keep extending it and not making corrections, apparently everybody wants to get in on the action of enforcing their ways upon others - physically, with supposition that THEY can be trusted and we cannot be trusted. "other official". So I have to wonder first why not just let trained doctor be the enabled one, rather than legitimizing the less educated untrained and even unethical ones. See also:

http://www.tgorski.com/news_analysis/male_guards_in_women's_prisons.htm
https://www.experts-exchange.com/questions/23036925/Legalize-marijuana.html

ex> "Amnesty International believes that allegations of sexual abuse of women prisoners in the USA nearly always involve male staff who, contrary to international standards, are allowed unsupervised access to female jail and prison inmates. Rule 53 of the UN Standard Minimum Rules provides that no male member of staff shall enter part of the institution set aside for women unless accompanied by a woman officer and that ''Women prisoners shall be attended and supervised only by women officers''. In addition to rape, a form of torture under international law, Amnesty International maintains that there are practices which are inherently cruel and degrading or are open to abuse, but which are still allowed in New York. This includes allowing male staff to .........
                         [etc]

BigRat > The argument runs "you wouldn't want to jeapodize the health and safety of a child, would you?", of course not, but you find a needle in a haystack with a magnet not with 40,000 snoopers.

'Snoopers' happen to be among major sources of spreading AIDS

BobSiemens > Why is it unreasonable to say "We won't shut you down because there is legit usage but you must tell us who is using your service for crime?

I am not saying you do not have a valid point. I am trying to say that this is a different question.

You can create a law to require a company to record 'official' transactions and preserve them in some fashion for some limited time. I'm not asking if that is good or evil or if courts should support or deny that. The question is about the absence of law, the absence of existing records of transactions. The question was steered to the more transcient, temporary, elusive, and probably more abundant records that do not exist, without even any notion of how to go on about creating records. Granted, I did a few offshoot branches of topic from that, but not to point of discussing existing records, capabilities and laws, whether they are just or not. So if it is to apply to example of gun control, we need to first remove all existing laws, and records kept, scroll back the calendar, and then bring in some person or business complaining to some judge. How about, asking for phot of everyone entering gun store to be published, when there is no camera in the store? How about the time prior to camera being available to store owner?

> That's not a fair comparison because "suspects we may know something about crime" is VERY different from "KNOW that crimes are routinely committed and we are helping to commit them".

So I'll let you mod that, suppose more than one bad-guy was discovered to have used EE, so there is formed a 'reasonableness' that others might be so inclined to be evil

> A much better analogy related to the fact that witnesses may be given a subpoena and compelled to testify about crimes that are witnessed.

Not in this question

> The only wrinkle is that the judge is ordering the potential witness to track what is being seen

Now you are getting warmer, towards the basis of the question. Potential witness and potential criminal, and an order to preserve the seen
Turn the question around.  

You have made a movie.  Copies are being stolen dozens of times a day.  A web site is used to help steal the movie and the info of who is stealing it has been provided to the site.

If you were told that it is too much to ask the people who are helping to steal it to keep records, would that be OK?
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My question is, who do you ask followed by what do you ask for.

For the first part, take five choices, the individual(s) doing the copy (either origin or destination), and aif I can make the assumption - the middle one operating something lie a server, then the government, someone carrying official badge, someone making a law, someone interpreting law (judiciary), the question seems to invlove more the latter, the judge and the server operator. But at this stage I do not think it appropriate to question who they ask for assistance for the purposes here, let them ask anybody they want to. If a little girl is using grandparents computer, they can ask the girl or the grandparent.

The question is on the recordkeeping aspect. It is primarily based upon the nature of there being no existing recordkeeping system. So it is requesting something new and different if not unique or even beyond possiblity or something currently available. As an extension I've allowed for the subquestion concerning the freedom of an international internet, where a user can be in one country, a server in another, and whereever the other players may be located in the drama. That could lead to potential for records to be available more easily, and for what to do about that.
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Thanks, splitting mostly between dagesi and BobSiemens, although apparently not agreeing much at all with the latter on this one, at this stage, participation high, points were made so points were given.
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Closing. I am not really arguing against Bob statement per se, it was that for me I saw other issues at stake. Maybe its just me.