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Kaplan on DeCSS, DMCA, Hackers, and More 86

Posted by CmdrTaco from the stuff-to-read dept.
AltGrendel writes "Wired has a story about Judge Kaplan of DVD Piracy trials fame. He has an interesting view of hackers, to say the least." Doesn't say really anything we haven't heard elsewhere, but it does make a few interesting points. He's a smart guy, no doubt about it. I just wish he wasn't wrong.
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Kaplan on DeCSS, DMCA, Hackers, and More More

Kaplan on DeCSS, DMCA, Hackers, and More

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  • Actually, it specifically says in the article (in the part that was quoted in my original message) that Kaplan views them as lawlwss miscreants.

    And, if you only know about kaplan from that article, then you must not have been reading slash very long. Remember all those articles about how Kaplan ruled in DVD deCSS case? Remember all the talk about the DMCA, which Kaplan used in his ruling?

    Perhaps you should actually read the article before you accuse others of not having sufficient information.


    -CoG

    "And with HIS stripes we are healed"
  • That a jurist understands the technology does not mean that he/she will be more sympathetic to what might be termed the "average Slashdot reader's position" ("ASRP"). The companies that lobbied for the DMCA certainly understand the techonology, and they are anti-ASRP.

    More particularly, I'm not aware that there are any errors in Kaplan's opinion which arise from a misunderstanding of the technology at issue. (I don't count errors that are irrelevant to the point at issue, statements that constitute errors only if tendentiously read, or statements that constitute errors because the statement is not true in a insignificantly small number of instances.) If I'm wrong, correct me.

  • In August, Kaplan ruled that the DeCSS Windows program violated the Digital Millennium Copyright Act..

    i guess it's only the windows version that is illegal. wtf?

    john
  • "The law of the land" is the US Constitution, my friend. No other legislation holds its gravity or sway. It sets limits on the power of the Government. However, it is not an absolute. The rights guaranteed in the Constitution all have restrictions that fall on various sides of the tug of war between individual rights and the common good.

    You're living in some utopian dream world if you can't embrace the fact that all rights have restrictions, and must, for the common good. For example, you can't smear yourself with your own feces and run naked through the streets under some vague protection of "freedom of speech." Freedom of expression is subject to decency restrictions that have been routinely upheld by courts throughout the country.

    If you really think that we could get by with no other legislation than the constitution, I think you might want to consider what it would be like to live in such a society. No roads, no courthouses, no government hierarchy, no jails, no police officers, no guarantee that you won't be shot in the head under someone else's broad and all-encompassing freedom of expression and free speech.

    All this vague babble about the "law of the land' and legal vs lawful sounds great if you're giving a Mahatma Ghandi speech or something, but when you get right down to it, it doesn't amount to a hill of beans. The legal system is there, and it's there for a reason, and saying, "Bad legal system! Bad!" and spanking it on the bottom isn't going to make all your troubles disappear my friend...

  • Anybody notice (Score:1)

    by Anonymous Coward
    That wired linked to DeCSS in their article?

  • so if he's not best suited to deal with cases like this why is he so certin that he made the right decision?

    Because the MPAA told him so, silly. How else?

  • Thanks for the suggestion, but hey, I read the article. And you apparently don't know what "direct quote" means.

    Example of direct quote: Joe Blow said, "Hey I think all you slashdot monkeys need to lighten up!"

    Example of indirect quote: Joe Blow said that all you slashdot monkeys need to lighten up.

    Now that you know that what was in the article was most decidedly *not* a direct quote, you might want to take it with a grain of salt. And maybe if *you* read all the way through the article, you might realize that just because he holds a view different than yours, he's not an asshole, or close-minded. He obviously very intelligent, and I think the article has put a more negative spin on what he said than you might imagine. You might want to reconsider getting all up in arms about this.
  • Well at the same time, the plantiffs in the Santa Clara Couty Supreme Court case decided to also send cease and desist orders to...Australia since the Aussies might be criminals depending on the California ruling. It's only a matter of how this nation views itself as most important more often than not.
  • That's nice and all, but after reviewing every single one of my messages, I still can't seem to find where I even implied that I had a direct quote from Kaplan. Supposing I am wrong, could you enlighten me as to where?


    -CoG

    "And with HIS stripes we are healed"

  • Re:Then what the hell do judges do? (Score:3)

    by Jonathan ( 5011 ) on Saturday November 18, 2000 @09:46AM (#615670) Homepage
    Kaplan was referring to the DCMA, not the lawsuit of which he was the judge. Judges help decide whether someone has broken a law. It is not their place to decide if a law is a good or bad one. That was his point.

  • Again, the DMCA is a failure of the system (Score:3)

    by TOTKChief ( 210168 ) on Saturday November 18, 2000 @11:03AM (#615671) Homepage
    Said Congress might eventually revisit the DMCA: "Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions."

    Kaplan raises an interesting point: Congresscritters are so unbelievably far removed from being lawmakers that they rely on interest groups to write legislation for them. It ends up leaving all sorts of interesting Easter Eggs in the legislative vagaries. We are then left with what happens countless times these days: judges legislate from the bench, rather than Congress [or state and local government] writing sound, well-formed legislation.

    Consider the current problems in Florida. The laws are contradictory--no one has been able to say, "This is what we will do, because this is the law says." Conversely, everyone is able to claim a small slice of legality for their position, throwing it into court.

    This is nothing new, of course, but we can and should demand more thoughtful consideration of legislation from our Congresscritters. I dare say many of them don't truly study--or have their staff study--the full implications of their legislation. While it is often the case that well-meaning legislation has unintended consequences--I've been bitten in the ass myself on that with stuff locally--it is readily apparent that no one, other than those who wrote the DCMA, really considered the scope of the legislation.

    And they say it's not important to vote. *snort*


    --

  • Smart guy? (Score:5)

    by 0xdeadbeef ( 28836 ) on Saturday November 18, 2000 @09:49AM (#615672) Homepage Journal
    He's a smart guy, no doubt about it. I just wish he wasn't wrong.

    He may me smart, for someone trained in law, but the average slashdotter has better reasoning skills (or integrity).

    He practically called Jon Johansen a liar [1], claiming that he wrote DeCSS to pirate DVDs, and that since it was a tool of piracy, the reverse engineering provisions of the DMCA do not provide a defense, regardless of the fact that there are legitimate uses for such a tool. [2]

    And the whole thing with that disease analogy[3], what the fuck was he smoking? Why couldn't he just liken it to a military "containment" policy, which is basically what he was saying: in order to protect society's (er, the studio's) interests, we must smack down these pirates and their programs where ever they surface, like the dirty little subversives they are. But I guess that wouldn't be politik, with the first amendment and all.

    Kaplan may be trying to look like the impartial nice guy, be he'll always be a big fucking wanker because of this ruling. Remember, Malda, behind his words are men with the guns ready to take everything away from you because you want to watch a fucking movie on a piece of equipment not sactioned by the CCA.

    [1] Universal vs. Reimerdes [uscourts.gov] [pdf], p.35
    [2] p.37
    [3] p.61
    --
    Bush's assertion: there ought to be limits to freedom

  • Re:Circumvention (Score:1)

    by Anonymous Coward
    Indeed, not all of these "hackers" live within the US. If I received a cease and desist letter about the DMCA I would a) inform the Law Society here in the UK (assuming the letter comes via a Solicitor here in the UK) that a member of their ranks was using intimidation by threatening legal action over a law that does not exist within the UK and b) inform the police as this does actually represent criminal intimidation as there is no basis in UK law for their position c) inform those that sent the letter of the actions I had taken.
  • Of course, with that definition that means that nobody even believes in our rights.

    To express the will of the people, in this case their views on hackers, is to express the will of the majority.

    "'What then can be depended upon to keep the government in close rein? ' The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent parts may , by their mutual relations, be the means of keeping each other in their proper places. . . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. ' There are two ways of obviat-ing this danger: one is by establishing a monarch independent of popular will, and the other is by reflecting these contending interests ( so far as their representatives may be enfranchised ) in the very structure of the government itself so that a majority cannot dominate the minority - which minority is of course composed of those who possess property that may be attacked . ' Society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.'"
    -Charles Beard
  • Due to your exelence in correcting english mistakes.... i name thee the first official Slashdot grammar nazi.
  • So Kaplan is simply picking and choosing inappropriate precedents (e.g. re public airwaves) to bolster his pro-industry prejudice, and ignoring more recent and relevant precedent (albeit in different circuits) which contradict his position.
    What are you blabbering about?

    PRECEDENT, n. In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament.
    From THE DEVIL'S DICTIONARY ((C)1911 Released April 15 1993)

    Who's smart now? ;)

  • "Situational ethics" are logically self-refuting and simultaneously ultimately valueless. Certainly Kantian/religious legalistic ethics are ridiculous as well, but choice is not merely between those two paradigms; value hierarchies avoid the nilihism of situaltional ethics and the silly pedantry of legalism.

    That's a mean compact statement. Can you expand on what "value hierarchies" are?

  • Declaring laws unconstitutional is not a power granted to any court, even the Supreme Court. It is instead the logical extension of the Supremacy Clause of the Constitution as applied to court interpretation of conflicting laws. As such, it is an implied power held by every court, not just the Supreme Court.

    Having said that, though, how many lower court judges would have the stones to go up against the government directly, when they could "delegate" the decision to a higher authority, avoiding the issue?

    Even if Kaplan thought the law might be constitutional, I suspect he would rather see the issue decided by the Supreme Court - they, after all, do have the power to say "No, govt., you screwed up - your law goes in the bitbucket NOW" without being second-guessed by their colleagues.

  • The printing press, broadcast media, and now the Internet have all had a major effect on the politics of their day. New forms of communication, at their very heart, are strongly tied to politics. Why do you think the first ammendment exists?

  • Given the evidence, especially the fact it was written in visual studio, it would seem that this is a perfectly valid thing for a judge to say, and probably is the truth.
    Wrong. Johannsen and MoRE wrote DeCSS in Windows because, at the time they wrote it, UDF (the DVD file system) was not supported under Linux. DeCSS compiles fine under Linux, as LiVID have proven. Also, there is no such language as "visual studio" - you must mean Microsloth C++, which compiles normal C just fine. DeCSS is normal C. Try again, troll.
  • I wrote a letter to my local member of federal parliament in australia about DVD's and a similar law we have here. He took the time to forward on a one page letter to the Attorney-General expressing my concerns that corporations were using copyright laws to enable market monopolies. When you write a letter, you have to think on their wavelength. Dont send some "you guys are all stupid letter" explain in a economic rationalist framework, and they have to listen. Essentially I said that certain software is illegal, and it allows for a monopoly to be set up. Governments hate monopolies, they always want competition etc. So there is hope, and you will be listened too if you dont send some flame mail. To all you aussies it was Dr Brendan Nelson (member for Kur-ring-gai, Lib)
  • > Who's smart now? ;)

    You are!

    But I'm enough of an idealist that I consider a judge who fits the definition you quoted, to be unfit for office.

  • I never said that they were. Such generalization would make me as guilty as Kaplan. My point was that not all hackers were open source programmers, and not all os programmers were "lawless miscreants". I apologize for any confusion this may have caused.


    -CoG

    "And with HIS stripes we are healed"
  • Where did he equate the two terms again?

    District Judge Lewis Kaplan doesn't truly dislike hackers and open-source programmers, not exactly.

    I could say I don't like dogs and cats (or even that I do), but that doesn't mean I am equating them. Both is this *not* a direct quote, but it also doesn't equate the two like you seem to have taken it. Nowhere does he say that hackers are open source programmers. For those reasons, maybe you should at least give the guy a smidgen of the benefit of the doubt?

  • Grammar Check: Subjunctive Mistake (Score:1)

    by Anonymous Coward

    I wish people would stop forgetting to use the subjunctive. It is not, "I just wish he wasn't wrong," but rather, "I just wish he weren't wrong."

    Remember, you use the subjunctive in if-then clauses that use subjunctive/conditional (e.g., "If she were not going to the theater, I would not be going.") and especially in cases of "wishing" that something happens (e.g., "I wish he were more polite so that he would not try to correct everyone's grammar.").

  • American "rights" (Score:3)

    by Bongo ( 13261 ) on Saturday November 18, 2000 @08:48AM (#615687)

    If the case is appealed to the Supreme Court, Kaplan confidently predicts his decision will be upheld: "The Supreme Court has repeatedly rejected absolutist views of the First Amendment," he said.

    absolutism n. the acceptance of or belief in absolute principles in political, philosophical, ethical, or theological matters. absolutist n. & adj.

    So you Americans have rights, but only 95% of the time. And it is not in your rights to decide which 5% of the time you don't have rights.

    IOW, the powers-that-be reserve the right to screw you, every so often.

  • If they actually decided that, it would make perfect sense to me.

    On Windows,there are ways to play DVDs without cracking the encryption. On Linux, there are none.

    Therefore, DeCSS has a legitamite use under Linux but not under Windows.

    Somehow, I don't think the judges will see it the same way.
  • Oops, actually it was page 38 where he most clearly implied that Johansen is a liar and dismissed the Linux defense:

    Mr. Johansen is a very talented young man and a memebr of a well known hacker group who viewed "cracking" CSS as an end it [heh, typo] itself and a means of demonstrating his talent and who fully expected that the user of DeCSS would not be confined to Linux machines. Hence, the Court finds that Mr. Johansen and the others who actually did develop DeCSS did not do so soley for the purpose of making a Linux DVD player if, indeed, developing a Linux-based DVD player was among their purposes. Accordingly, the reverse engineering exception to the DMCA has no application here.

    --
    Bush's assertion: there ought to be limits to freedom
  • "Members of the hacker community then stepped up efforts to distribute DeCSS to the widest possible audience in an apparent attempt to preclude effective judicial relief," Kaplan said.
    this is, to me, an interesting use of the word 'hacker'. not so much in an obvious sense, because it is being used all over the net and tv (indeed, the 'hacker community' seems more than happy to accept such a label), but more along the lines of the 'hacker == cracker' media usage. in my mind, the use of the phrase 'online community' would have been much more acceptable (although perhaps arguably unnecessarily broad.) in my opinion, this type of usage could conceivably lead to an all-too-easy labeling of that group, thereby making it easier to dismiss them out of hand as, basically, a bunch of punks.

    comments are welcome.

    cheers,
    eudas
  • For that matter, laws restricting slander, false advertisement, or fraud are unconstitutional since they restrict free speech. Would you suggest we throw out all standards of accountability in the name of absolute freedom of speech?

  • Mr. Kaplan, I award you one troll moderation.

    What's taken you so long? The rest of us took one look at the original ruling and did exactly the same thing. ;-)


    -RickHunter
  • Ooops, I was just going to point out the link goes to some page about someone wife not a mirror of the article, sorry for the blank comment everyone, mouse slipped :)
  • And you're a dumbass if you fell for that :P

    "The good thing about Alzheimer's is that you can hide your own Easter eggs."

  • for judges at the highest level to have more than even a passing understanding of technology. This is a generational thing, and unfortunately we can only wait it out....
  • District Judge Lewis Kaplan doesn't truly dislike hackers and open-source programmers, not exactly.

    Kaplan, who sided with the motion picture industry in a landmark DVD-descrambling lawsuit this year, simply views them as lawless miscreants.

    I think Christ-O-Geek is at least partially right there, in that the article states that Open Source Programmers are also Lawless Miscreants. For one thing, the article said them, and that word refers to hackers and open-source programmers.

    Granted, the statement didn't come out of Kaplan's mouth himself, but when we believe the article is accurate, he does view Open Source Programmers as Lawless Miscreants.

    Therefore he's wrong.

    And I think you are too.

  • Re:Smart guy? (Score:3)

    by jmv ( 93421 ) on Saturday November 18, 2000 @10:27AM (#615697) Homepage
    but the average slashdotter has better reasoning skills

    You mean the "first post" ones or the "naked and petrified" ones? OK nevermind...
  • Kaplan was referring to the DCMA, not the lawsuit of which he was the judge.

    I think it would be safe to say that the DMCA was pretty central to both sides of the case. Judges decide whether someone has broken a law by specifically interpreting that law - its wording, intent, framework, etc. If he's not equipped for the circumstances - even somewhat extended considerations of the arguments - then it would seem he should not have been presiding over this case.

  • Hardly, at least, I didn't see anything interesting mentioned by Kaplan in the article, but, his statements smack of someone emboweled with something rigid back in the backside.

    What was kinda funny was the first link at the bottom of the article to Alt2600's registering of domains using obscene words combined with Corporate Monikers. [wired.com] I'd love to receive a formal letter from GM saying: "Your registration of Fuckgeneralmotors.com domain name constitutes a trademark infringement." I'd frame that. >:)

    Linux rocks!!! www.dedserius.com [dedserius.com]
  • Not lawless miscreants. People. WE made the internet. OUR research and ideas brought you this revolution. What makes it so great is that you can talk to anyone in the world and find a vast amount of information without running into any toll plazas along the way.

    The difference between Respectable Citizens and Lawless Micreants in the eyes of The Law is corporate backing. If you do something clever on your own, some corporation will sue you over it and you get to be a Lawless Micreant and have your work suppressed. If you do something clever in the employment of a corporation, the corporation gets ownership of it, takes out a patent on it and defends it agains Lawless Micreants.

    The Green Party is the beginning of the revolt against corporations. As corporations continue to harass citizens, this movement will pick up steam. I'm afraid that the revolt against corporate power, when it comes, will destroy a corporation's ability to do good things as well as bad things. Unfortunately, I don't think that the corporations of America can moderate their behavior enough to avoid thourghly pissing off the People and bringing around this state of affairs.

  • There's smart, and then there's "smart"... (Score:4)

    by alienmole ( 15522 ) on Saturday November 18, 2000 @12:01PM (#615701)
    "Smart" is relative. By some measures, anyone who passes law school and the bar exams is "smart". But compared to many other thinkers in our society, Kaplan is mediocre at best, and as much admits it when he extrapolates from his own lack of competence in these matters, to arrive at the preposterous conclusion that all judges are as ill-suited as he to rule on such cases.

    It seems clear to me, contrary to Kaplan's assertions, that his ruling will not be upheld, unless higher courts radically change their attitudes to free speech.

    The first amendment right to free speech has already been applied to crypto source code [cnet.com], in a case which denied the federal government the ability to restrict speech in the form of computer code. The protection applied to computer code as free expression has been found sufficient to override laws regarding national security. Surely the national interest is more important than specific commercial interests, such as those of the MPAA and its members, in which case overriding the MPAA's interest in this case should have been a non-issue.

    Kaplan also referenced the Pacifica ruling which restricts content transmitted over public airwaves; but again, communications on the Internet have already been held to the highest standard of freedom of expression by other circuit appeal courts, including the panel which declawed the CDA, so Kaplan's choice of precedent is highly questionable. By Kaplan's argument, swearing on the Internet could conceivably be banned, and according to him, to think otherwise would be an "absolutist view of the First Amendment"!!!

    So Kaplan is simply picking and choosing inappropriate precedents (e.g. re public airwaves) to bolster his pro-industry prejudice, and ignoring more recent and relevant precedent (albeit in different circuits) which contradict his position.

    Perhaps the way in which Kaplan could be said to be "smart" is that he didn't feel comfortable singlehandedly dealing with the conflict between the DMCA and the Constitution, and so chose to simply uphold the most recent law, ignoring the fundamental law upon which the United States is founded; or one could say he is smart in that he has protected a possible future consulting revenue stream from his former employer, Time Warner, by not alienating them with a ruling counter to their interests.

    But why CmdrTaco should think that is "smart" is beyond me. Kaplan is either stupid or corrupt, or both.

  • the whole legal system is perverted (Score:3)

    by DiviN ( 246231 ) on Saturday November 18, 2000 @12:33PM (#615702) Homepage
    reading through the article and then the comments here - especially the ones that address the abilities of the judge i can't help but point out that the whole system is perverted.

    trial by jury, for example is based on Guild trials in the dark ages - members of the jury would be professionals/ craftsmen of a certain guild and would decide if another guild member was guilty of something or not.
    do you see wher i'm getting here? any decission that involves technology should [can not] be made by a judge - not even by a panel of judges, let alone higher courts.
    decissions such as in the DeCSS case should always be made by a jury - which consists of experts in the field.

    why on earth do judges hear expert witnesses, if they don't really follow their advise? wouldn't it be better if those same experts passed the judgement - together with remedy advise - and then leave it up to the judge to decide on further action?

    why do courts trial everyday stuff [murder and mayhem] in front of juries, while landmark decissions are usually done by judges alone, without anybody else being involved?
    obviously they do that because that they believe that normal people are not qualified [but they are qualified to decide if someone is a murderer or not]. at the same time they believe that experts in the field are not qualified to pass a judgement on their own field of expertise.

    judges on the other hand, may or may not know applicable law [provided there is any] and of course - well, what else do they know? nothing really.

    the legal system basically decides that technically a judge is qualified to operate a network, drive a truck, pilot a plane, develop software, and do just about everything else - after all, why else would everyone rely on judges making decissions that affect network operators, truck drivers, pilots, software developers, respectively?

  • In July, during the trial, 2600 lawyer Martin Garbus filed a motion to kick Kaplan off the case, saying the judge displayed "deep-seated antagonism" and once worked at a firm that had represented Time Warner on DVD antitrust issues. Kaplan denied the request.

    You don't say ...



  • There are multiple justices, which makes it less likely one person with an agenda decides the issue. They are no longer motivated by conventional politics, as they are appointed for life and don't have to fund reelections. Consequently, the politics among them are much different. They have 3 factions - the conservatives, the modern liberals (think Democrats) and the classical liberals (think Thoreau.) If this case went up to the Supreme Court, it would be much more likely to get a judgement based on the facts.


  • The point you raise is certainly valid. In fact, I believe that Kaplan did understand the technology, per se, in rendering his opinion.

    However, I see the open source movement and, perhaps, the "Average Slashdot Reader" as something that has extended at least a bit beyond technology into a community/subculture. When a judge makes statements lumping Hackers, Crackers, and Open Source proponents into the same group, he clearly does not have a handle on what this group is about or the subcultural issues that may come to play here.

    For the DeCSS case, the open source movement as a subculture is certainly at issue as much as the technology.
  • Declaring laws unconstitutional is not a power granted to any court, even the Supreme Court. It is instead the logical extension of the Supremacy Clause of the Constitution as applied to court interpretation of conflicting laws. As such, it is an implied power held by every court, not just the Supreme Court.
  • Americans crack me up. You think that electing jugdges is good, but then whine and complain when you find out that they don't actually know anything.
  • I hate to respond to clear Flamebait drivel, but there is an important principle here that has to be highlighted:

    The legal system is neither above or below technology. In fact, the legal system does not exist for the hell of it. Nor does it exist for lawyers and judges. It exists to enforce the law where disagreements arise between people (in cases like these). In that sense, the law and legal system is in service of the people who it affects and protects. A law or judgement that is otherwise is neither sensible or valid.
  • I don't know about the EFF(ff) argument about source code being speech .. when you get into issues of freedom of speech (well .. in the US anyways) - i think you'll find that not all speech is productive, and that speech is powerful (has the power of life and death, ..)

    . If you look at source code more like a recipe (and sure you can print, reword, speak and sing recipes if you want .. "2 cups of butter 8 pounds of eggs" ..) - but the intent (once again subjective) of a recipe is mostly different from many casual conversations in that it involves specific instructions on how to create/destroy something which is a different class of speech than saying "I think you suck because foo blah gah gump" ..

    IANAL BIKFTM (I am not a lawyer but I know far too many)

    I've given this a lot of thought and it seems clear that code is speech, even code with an illegal purpose. Why?

    1) Code is a "recipe" written in a format not necessarily ideal for human communication. But these formats have long been considered protected speech. The best example is sheet music, the closest thing to code that's been around for a long time (means nothing to most, isn't a human language, but in the round hands it has tremendous meaning and power). Sheet music is definitely speech - so is a play, a piece of clothing (which makes a statement about who you are), so is a equation/algorithm, etc. Source code seems to definitely fall in the same vein.

    2) Speech which provides instructions on how to bad things is protected. Examples: Anarchist's cookbook, discourses on lock-picking, publicly available military manuals, etc. A couple years back a guy wrote a book on how to be an effective hit man and he won court challenges on the grounds all his book did was tell how to be a hit man; it did not encourage it, and was therefore protected speech. On a less extreme level, I noticed a very bad book on "how to be a hacker" at my local library - it provided the material purely for informational purposes according to the editor's note. If such things are protected speech, why isn't code which has a legitmate use?
  • I have to agree with a sentiment posted above. The equation of hacker to open source programmer is ridiculous. To borrow a tired line, it's like apples and oranges. How could he make such confusion? And even more disturbing, how could he then be printed and hailed as a very smart man on the open source informal information network we all know and love? Where have you gone Slashdot?

    1. P 2 P___H U M O R [mikegallay.com]
  • Australian laws on circumvention do not start until the 4th of March 2001.

    cya, Andrew...

  • Hacker doesn't neccesarily mean "l33t h4x0r." It can simply mean an expert programmer, or the like.

    Only to other hackers and many computer geeks. When the word "hacker" comes from a judge or most major media outlets, you can pretty much assume it's a slur, or at least with a non-flattering intention.

  • Hacker == Open source programmer??? (Score:4)

    by Christ-0-Geek ( 246330 ) on Saturday November 18, 2000 @08:12AM (#615713)
    From the article:
    District Judge Lewis Kaplan doesn't truly dislike hackers and open-source programmers, not exactly.

    Kaplan, who sided with the motion picture industry in a landmark DVD-descrambling lawsuit this year, simply views them as lawless miscreants.

    Woah! I missed the boat or something there. Since when were hackers *always* open source programmers, and open source programmers *always* "lawless miscreants"?

    Mr. Kaplan, I award you one troll moderation.


    -CoG

    "And with HIS stripes we are healed"
  • This guy doesnt "hate" people that do this, he just doesnt like them very much. If every judge was like this, then we'd have open sourcing down the drain in no time. Time to move on and hope the appeals judge is a little more friendly.
  • I'm not exactly an expert on the American judicial system, but it was my impression that judges are appointed, not elected.

  • Kaplan typical of today's lawyers and judges (Score:3)

    by Demona ( 7994 ) on Saturday November 18, 2000 @08:19AM (#615716) Homepage
    It is the current government of the United States which is lawless, holding itself above the law of the land, and violating that law of the land by prohibiting us from doing this and commanding us to do that. Today's lawyers and judges don't even know the distinction between legal and lawful. My actions may not always be legal, but they are always lawful. So put that in your fuckin' pipe and smoke it, "your honor".

  • Hmmmm (Score:4)

    by karma_policeman ( 232005 ) on Saturday November 18, 2000 @08:20AM (#615717)
    He didn't criticize the movie industry directly, but he did say that "you really don't have to look very far to find the extremists on either side of the issue."

    Yep. For Kaplan, seeing a DeCSS extremist is as easy as looking in the mirror. :-)

  • Circumvention (Score:4)

    by Chrome Octet ( 252326 ) on Saturday November 18, 2000 @08:22AM (#615718)
    I particularly take issue with Kaplan's statement

    "Members of the hacker community then stepped up efforts to distribute DeCSS to the widest possible audience in an apparent attempt to preclude effective judicial relief,"

    as if the community were all bound by US law. This is too big an issue for one (very fallable) country to regulate.

  • Good job. Now, read more than the first line of the quote I used, and reply again.


    -CoG

    "And with HIS stripes we are healed"
  • Well, it's the truth. It goes back to yelling 'fire' in a crowded theatre. It's just one of those things you don't do. I think it's based on 'You can say anything you want, as long as it doesn't cause anyone else harm'. Now, whether the DeCSS software caused anyone harm is the point :)
    Incidentally, I reject absolutist views as well, but on a general basis. I'm a fond believer in situational ethics and 'time and place for everything'.
  • You're missing my point entirely. I was objecting to the fact that he was making the generalization that hackers and open source programmers were "lawless miscreants".


    -CoG

    "And with HIS stripes we are healed"
  • he followed that up with:

    "Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions."


    so if he's not best suited to deal with cases like this why is he so certin that he made the right decision?

    john

  • But isn't that exactly what they do when they rule a law to be unconstitutional? (Excuse my ignorance)


    -RickHunter
  • You sound like a religious salesman: The Revolution(tm) is coming, repent from your sins or you will be destroyed evil miscreant corporations!

    Come now, I would like to think that an intellectual community like /. would avoid vague overgeneralizations and obscure theological threats at companies to change their ways 'or else'...keep at it that way, your revolution will never occur...

    and btw, not everyone is fooled into thinking the internet is a 'revolution'..its a communications system, where did politics enter into that one?
  • >But isn't that exactly what they do when they >rule a law to be unconstitutional? (Excuse my >ignorance)

    IIRC from my high school government class, only the supreme court of the US can declare something unconstitutional, and they can only do so once a case comes into their jurisdiction (on appeal or whatnot). The lower courts (such as that which Kaplan adjudicates) can only decide whether a law has been broken.

    I have a feeling that my description is probably off a little, as it has been a few years since I covered the material.

    ---

  • Re:American "rights" (Score:3)

    by Bongo ( 13261 ) on Saturday November 18, 2000 @03:07PM (#615726)

    It goes back to yelling 'fire' in a crowded theatre. It's just one of those things you don't do. I think it's based on 'You can say anything you want, as long as it doesn't cause anyone else harm'. Now, whether the DeCSS software caused anyone harm is the point :)

    That's a really interesting point. And while that begs a lot of thought, I see it also raises the issue of 'harm' --- we don't compensate companies that were 'harmed' by the competition-with-better-products. We don't inprison people who spread information about the addictive effects of nicotine, thus 'harming' cigarette companies (or do we?)

    But the DeCSS case seems to my amateur eye to be not so much about freedom of speech, as of freedom of research. The 'law' is forbidding me from investigating, in my own private study, a piece of equipment that I own. It's anti-speech in the sence that I can't publish my findings --- and in the sence I can't investigate... it's anti-science. Hey, someone just discovered that the Earth isn't the center of the universe.... and We, the Church, can't allow that, so lets throw the man in jail.

    The 'yell-FIRE-false-alarm' scenario is about one individual harming other individuals. But DeCSS is about an individual 'harming' corporations (musicians are 'affected', but the court case is the corporation vs. an individual). This is similar to The Church vs. Copernicus, and we know who had the power there. Copernicus was simply not allowed to say what he had observed.

    Now let me play Devil's Advocate with myself, and ask "What if an individual 'observed' my bank account, or opened my mail (snail/email whatever)" Well, I wouldn't like it. It's like I don't like it when the papers print telephoto pictures of 'the stars' sunbathing by their private pools. I believe in the right to privacy. The state, or corporation, should not be allowed to interfere in my privacy.

    So one question is, how do we reconcile the right to science and investigation with the right to privacy? Certainly the truth can be used to harm, or it can be used to help, but either way, should we not be free to determine the truth 'independently' (ie. without torture or theft)?

    I suspect this has more to do with the people running the system that it does with the quality of the coding of the laws themselves. But that's just my amateur ramblings.

  • Re:Smart guy? (Score:1)

    by Anonymous Coward
    That is in your opinion, in my opinion the average apple has better reasoning skills than the average slashdotter, you may be closer to an orange however.
    Just remember, everyone is out to take away your freedom, and regardless of the damage it does to anyone else, you must fight it.

  • Right. The "average slashdotter" is a fourteen year old boy who's embarrassed to take a shower after gym class, and who uses Linux and DeCSS soley to rebel against the establishment (i.e. against all of the jocks and cool daddies who are stronger and get better grades, and who won over the girl he has a crush on).

    So what? A person can be intellectually more developed, but emotionally lacking. Also vice-versae is possible. Being shy doesn't make you dumb, any more than developing your muscles makes you more compassionate. Ideally all aspects of a person would be developed, but our culture doesn't seem to succeed at that.

    A slashdotter may indeed be right about an issue... it's just a shame that nobody is listening.

  • But what can we do?

    Well, you might try something along the same lines as what I'm [slashdot.org] doing. Failing the conviction/time/desire/ability to do that, there's always the old standbys of democracy: make some noise, get your Congresscritter's attention, esp. at the state level, and get some legislation allowing/requiring competent judges on difficult cases. (See here [slashdot.org] for more on that.)
  • Hear Hear!

    On a slightly different tangent, I don't think that the US Justice system, or the corporate entities, will be able to keep up with the hackers. So far, most of the recent stuff that people have been trying to make has been cracked fairly quickly (CSS and whatever that encrypted sound stuff was).

    When the military sees that another country has replicated a weapons system, they don't try and argue with them, they set out to build a better one. I think this would probably work if applied to the encryption world. I'm sure that most of the employees of these companies won't be enthralled, but I think this is probably the only way it will ever work.
  • He was referring to appraising the DMCA if I read the other guys post right, which is different from interpreting it.

  • Smart" is relative. By some measures, anyone who passes law school and the bar exams is "smart". But compared to many other thinkers in our society, Kaplan is mediocre at best, and as much admits it when he extrapolates from his own lack of competence in these matters, to arrive at the preposterous conclusion that all judges are as ill-suited as he to rule on such cases.

    I'd say that compared to the vast majority of the slashdot drones, the guy is a f*cking genius.

    Is it really his place to overturn a law based on whether or not it is constitutional ? Indeed, did the defence prepare an argument to that effect ? I would have thought that the lower courts would not strike down laws like that, and that he was proper in appraising the main question of the case -- whether or not the law was broken ( and not whether or not the law was "lawful" )

  • Then what the hell do judges do? (Score:4)

    by hiryuu ( 125210 ) on Saturday November 18, 2000 @08:27AM (#615733)

    According to Kaplan:

    "Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions."

    Given that there were already concerns about his impartiality (due to his past), and he didn't believe that he (since, presuambly, he would include himself amongst "judges") was equipped to deal with this, why on earth did he not recluse himself? It's like saying "I stand by my judgement, but I have no idea what I was doing because I never learned how."

    Aside from that, not much he said was a surprise - we knew he held "our side" in pretty high disregard, and that he had a strong bias toward the big money. Big shock.

  • Said Congress might eventually revisit the DMCA: "Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions."

    on the second page..... for those who read past the first paragraph. I think this judge is a little more level headed than he is being given credit for. In another quote he says the internet is the fourth great age of communication (starts with writing).
  • [Mr.Kaplan]Defended the controversial DMCA, saying "this demonstrates clear as a bell that Congress listened to all sides of the debate, whether or not you agree with where the DMCA came out."

    What? When was the last time ALL of congress listened to both sides of any debate? Congress is run by committees, and whatever lobbyists or special interest groups that got to the committees first are going to have their stories heard, as well as the particular biases of the congressmen on the committee as well. I don't think congress took enough time and thought with DMCA . . . and I know that we as 'geeks' didn't write enough letters and make it clear exactly HOW retarded this law is.

    Okay, ending my rant. I've just heard an awful lot about the DMCA and how terrible it is on Slashdot, and EVERY time this comes up somebody posts an 'insightful' comment about how we should all write letters, but nothings being done. So either we aren't writing the letters or our congressmen are ignoring us . . . prolly depends on who your congressman is, though.


  • By reading about Kaplan and some of the other judges who have ruled on these tech/coding cases like the DeCSS business, I wonder how qualified most judges are to rule on technology...

    I understand that their primary training and expertise must be in law, but law always exists within a context. Much of the judicial system is made up of older judges who are only marginally competent with technology and who are clearly outside of the context of the internet, open source movement, and so on. Yet they end up ruling on a social subculture using external and often ill-fitting norms and standards.

    But what can we do?
  • Joe Blow doesn't like apples and oranges.
    He views them as bad fruit.

     That still doesn't mean Joe Blow thinks that Apples actually are oranges. Hell, it's not even a direct quote, so how can you be sure that Joe Blow really feels that way. You know, it's not uncommon for a journalist to slightly paraphrase what someone has said and put a completely different spin on it unknowingly.

    All I am saying is that you need to stop being so testy and give someone a little more credit, until you've at least heard it come directly out of their mouth. You don't know a god damn thing about this guy except what the article told you. I think you're being overly judgemental and jumping to a hasty conclusion.
  • ahh. point taken. Sorry I was unclear earlier. You're right - I should have emphasized the hacker point as much as the open source programmer point.

    Thanks.


    -CoG

    "And with HIS stripes we are healed"
  • I don't know about the EFF(ff) argument about source code being speech .. when you get into issues of freedom of speech (well .. in the US anyways) - i think you'll find that not all speech is productive, and that speech is powerful (has the power of life and death, ..) - and really what i believe the censors are aiming at has more to do with intent. Now intent (as we all know from watching the Florida debates) is a highly subjective matter to determine - but this is really where the case (and much of our humanity) lies ..

    Now i'm not sure that this is the best approach for dealing with this matter. If you look at source code more like a recipe (and sure you can print, reword, speak and sing recipes if you want .. "2 cups of butter 8 pounds of eggs" ..) - but the intent (once again subjective) of a recipe is mostly different from many casual conversations in that it involves specific instructions on how to create/destroy something which is a different class of speech than saying "I think you suck because foo blah gah gump" ..

    Now I believe in this aim DeCSS has a stronger case - If you can begin to show that the use of a recipe (albeit a pretty bad one) has limited the freedom on the distribution of a better technology for all people - I think you have a case that's more akin to that of oppressive and controlling governments within the US federal government (in this case the standards organzations of the DVD Consortium controlled by corporations such as the MPAA) whose intent is to deny access to the enjoyment of a work of art because they have implemented a bad business model to begin with. The proliferation of this business model is based more on (once again subjective) an issue of maintaining control because it is more profitable for those with vested interests to prevent change. This stays a little truer to form and brings in the human side of the larger issues involved.

    Now if the artists didn't support the MPAA or RIAA, I think they would find a better distribution mechanism and a better business model for truely talented people to shine without the corporate spin of opinion on what's good and what's not .. in other words .. we need to open source Art! and other areas of IP that have come under the hand of self-seeking corporations bent on controlling people through closed standards.

  • ...if the 'peter principle' applies to jurisprudence.

    His quote:
    "Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions"
    is a complete cop-out.

    He's right, judges don't get special training. To become a judge, You must go though 7+ years of law school, various bar exams, and gain experience as a practicing attorney *before* being appointed to your first bench. You'd expect someone capable of going through this process would be smart and experienced enough to reason out most situations, and be capable of doing the research and critical thinking necessary for previously unexplored areas. This is exactly what we've seen and expect of judges in previous cases such as the Microsoft Antitrust case, the CDA, etc... Indeed, most other courts, especially the Appeal and Supreme Courts, do this on a regular basis.
    One of the reasons we have courts is to make decisions in situations that are unclear or apparently aren't covered by legislation. This is called *judicial precidence*
    In his quote he's declaring he's uncapable of this type of performance.

  • with copying? Maybe the MPAA is really worried about people manufacturing NON CSS compliant machines, which would be out of their control.

    They must have known that making the source code illegal would have little effect on it's free distribution, but when someone would try to make a DVD player using DeCSS....bango, instant lawsuit on a federal level.

    The fact Linux users will still use this to play DVD on their desktops doesn't bother them, but John Q Public running down to Best Buy or Walmert to buy a player that can play ANY region CD does.

    Kaplan knew this, he must have.
  • The complaint about Kaplan is not that he applied the DMCA, but that
    he constantly went for interpretations of the evidence that bent the
    case most in the plaintiff's favour. The stuff he said about the
    intent of the authors of DeCSS being piracy is simply rubbish.
  • My reasoning skills, naked and petrified!
  • Chalst gave a good reply about Kaplan's rather obvious bias, which was apparent both in his actual ruling and in his statements to the press.

    Is it really his place to overturn a law based on whether or not it is constitutional ? Indeed, did the defence prepare an argument to that effect ?

    Yes, the defense did argue that DeCSS was protected speech, and that the DMCA, as applied to DeCSS, violated the First Amendment. It was well within Kaplan's power to rule that the DMCA could not be applied to DeCSS because it violated the defendants' constitutional rights. That would not overturn the law as a whole. This is exactly the kind of thing that other judges have done in cases like the ones I referred to, regarding both the CDA, and encryption export regulations. In the case of the encryption regs, federal law was subsequently changed to allow publishing of encryption source code, from what I understand.

    What Kaplan did was take the conservative, pro-industry approach of granting a temporary injuction, regardless of any constitutional rights of the defendants, based largely on the monetary damages that could allegedly be suffered by the plaintiffs due to DeCSS. Given the fact that Kaplan has previously represented Warner Brothers on several occasions, and that his parter apparently helped design the DVD antitrust strategy while Kaplan was on staff in the same department, Kaplan certainly falls short of the ethical standard that a judge should avoid even the appearance of impropriety. Even his comments about the defendants indicate clear bias, whatever the basis for that bias.

    Still, I went too far in calling Kaplan stupid and/or corrupt. However, I strongly disagree with his conclusions, and I question his objectivity in this matter.

  • When you're in your early 20's and struggling like hell against the reality that you're becoming an adult, it's normal to behave the way Rob Malda and his crowd behaves. Heck, I was like that too. Wait 10 years and they'll look back in embarassment at what damn fools and dupes they were.

    Yes, it's too bad that they're so wrong, but there's hope that as they mature they'll catch a clue or two. It took me long enough but I'm finally getting there.

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