Ask The DeCSS Legal Team 283
Martin Garbus and Robin Gross are the attorneys defending Emmanuel Goldstein and 2600.com in the DeCSS case that just had its first decision. Ask them whatever you'd like about the case - we'll do the usual, forward highly-moderated questions and get their answers back to you ASAP. Note that standard, boring questions like, "Where do you go from here? Will you appeal?" are going to be asked and answered in other news stories, probably many times over. This is an opportunity to ask those questions that won't be asked in other news stories.
Forgive me for I have multiple questions: (Score:2)
2) Given that deCSS was not written in the US, that its author is not a US citizen and thus not subject to any US law or court decision, and never entered into any agreements regarding trade secrets of the DVD consortium, the MPAA, etc., given these facts, isn't banning the publishing of this document something akin to banning any other foreign document, such as the Quran, The Satanic Verses, or perhaps a more instructional work such as the Kama Sutra?
3) This might qualify as a 'where do you go from here', but what will be the basis of your appeal? In my limited understanding of the appeals process, there must be some justification for making an appeal other than being unhappy with the outcome.
Procedural Points (Score:2)
You may have appreciated that this is a technical forum, but that most of its members add "IANAL" (for I Am Not A Lawyer) to comments on legal issues.
For all the not-a-lawyers here, perhaps you could explain what the procedural timetable for your appeal is, to which court, and what power that court has to overrule or set aside Kaplan's judgment? For instance, will the appeal be a full review of all the evidence and conclusions, or limited to review of his conclusions of law?
For the record, I am a lawyer, albeit a UK-qualified one, and I have trouble following US federal procedure without moving my lips. The confusion about procedural and forensic issues among the non-lawyers is painful to behold. A little route map of the way ahead for 2600 and DeCSS would go a long way to inform debate around here.
Code as expression (Score:3)
This has implications regarding such things as export controls. It's instructive to compare this decision with Bernstein [cov.com], where the functional aspects were held not to weaken First Amendment protection.
So now we have conflicting decisions on this fundamental issue. Will this issue be pushed to the Supreme Court level to achieve resolution?
Re:Is your strategy based on the free speech issue (Score:5)
It seems to me that nowadays, we still have production companies in the MPAA, but we now have home "theatres" using equipment that the Judge said in his decision must be approved by the MPAA. That means that playback is now controlled by MPAA companies.
How is this different from the situation 50+ years ago? It seems to me that the judge, in this decision, basically said that movie production companies ARE allowed to own both the studio and theatre, essentially nullifying the antitrust breakup 50 years ago.
Will this have any impact on your appeal?
Human curiosity (Score:2)
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Ski-U-Mah!
MPAA anti-monopoly arguments? (Score:2)
During the trial, did you make any arguments that brought up the issue of the MPAA acting as a monopoly in the case of their outright control of how the DVD standard can be played back?
Region coding (Score:2)
Nowhere, however, in either trial testimony, the Plaintiffs' briefs, or the decision itself do I find any attempt to base the Plaintiffs' control of post-sale performance on either statutory or Constitutional law. It's just there. Nor is there any reference at all to 17 U.S.C. 109(c):
How does the Court get around this one? Or is it just begging to be reversed on appeal?
Precedents (Score:5)
No doubt a *huge* concern with this unique case, and one of the many reasons for its publicity, is the danger of legal precedents. How would you predict the long-term effects of this case with other landmark cases such as Roe vs. Wade?
proving it? (Score:4)
Supreme Court (Score:5)
Lawsuits against coding (Score:2)
Also what effect does the GPL have on this kind of thing and what would be the enforcement of this decision if this is somehow upheld in appeals?
Legislators and Technology (Score:5)
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"The Constitution...is not a suicide pact."
Timeline (Score:5)
Walter
Code as speech? (Score:2)
Fair use? (Score:5)
Let's illegally distribute, how's that? (Score:2)
Despite the MPAA's inability in 10 months to find an example of illegal Internet-based redistribution of one of their DVDs, this is not actually hard to do. Many campus dorm rooms have the bandwidth to enable this easily -- at either DIVX
Would it be helpful for people to start making movies, or portions of movies, in any format (including the "raw" DeCSS output) available on the Internet for download? Is there any reason why this would hurt the appeal?
It seems to me that a big part of the argument of the case was that there had been no piracy, and that DeCSS wasn't needed anyway. What if instead, in time for the appeal, there is rampant and uncontrollable piracy and illicit distribution on the Internet? (This is something like the "cat is out of the bag" argument, I suppose.)
We already have the means for providing shared directories to this type of content via the various Napster-like technologies. What we'd need to do is add better facilities to insure that it's much more difficult to trace back to who's actually made what movie available; also a way of obfuscating the actual data so there's no easy to tell that a particular bit stream on the Internet is a particular movie (something like winnowing & chaffing would work for this).
Code Under the First Amendment (Score:5)
Judge Kaplan [uscourts.gov] argued that computer code is "a matter of First Amendment concern. But computer code is not purely expressive." He goes further: "society must be able to regulate the use and dissemination of code in appropriate circumstances."
In other words, computer code is more than just speech, and as the courts have ruled since 1968, when laws "are limited to the noncommunicative aspect" of some form of conduct, they do not violate First Amendment protections.
This is a theme explored somewhat in a recent article [salon.com] in Salon [salon.com] (for which Mr. Garbus was interviewed, incidentally):
While code certainly has an aspect that could be deemed speech worthy of protection (as Professor Touretsky movingly testified [2600.com]), it has nonexpressive aspects as well. That seems to be at the heart of Judge Kaplan's decision, and you will have to work hard to get around that on appeal.
Hence my questions to you:
1. What level of Constitutional protection does software or computer code deserve? Will you continue, in appeal, to take the hard line that computer code is purely speech?
2. I know this may be somewhat out of your purview as lawyers, but do you hold out any hope for legislative remedy? If so, how would you want Congress would alter the DMCA?
3. And, finally, what possible implications does Judge Kaplan's ruling have for other cases relating to the legal status of software, such as the storm brewing over business method patents on software?
Thanks for your time.
Yours,
Adam Keiper
The Center for the Study of Technology and Society [tecsoc.org]
Washington, D.C.
No (Score:2)
Let me explain how this works. One of the first tracks on a DVD disk contains several copies of the 'session key' the session key is whats used to decrypt the video. The session key is encrypted with 'player' keys, each player, software or hardware has a copy of one of the player keys. When you go to play the DVD it reads the spesific copy of the session key that its supposed to, decrypts it with its player key, and then uses the decrypted session key to decrypt the data.
When you make a bit for bit copy of the DVD with a normal DVD-ROM drive (and I've never seen nor heard of 'non-normal' drives) it does not copy the section with the session keys, just the encrypted data.
beachse there are no session keys for the player to decrypt at all, the licensed player has no capablity whatsoever to decrypt anything.
When you license CSS, you get an algorithem, not a key that unlocks every DVD in the world.
Re:How dumb do you have to make your arguments? (Score:2)
Why People Complain about no Linux player (Score:2)
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Fixated on Linux (Score:2)
broken metaphore (Score:2)
Here is a better metaphore. I have a note writen in english, I use an enigma machine to encrypt it. I write the settings for the enigma machine in special inc that requires a chemical process and a special machine to read. Can I read the note? No. Would I need to be able to read it to make a photocopy? No. If I gave my photocopy to someone with ane enigma machine, would they be able to read it? No. The message can only be read if the origional paper, with the hidden key, is had.
Now, as we all know, enigma was broken, as was CSS. So if I had the origional paper (a legit DVD disk), and the chemical process, and another enigma machine, or a Bombe (legit CSS software, or DeCSS) then I could copy the unencrypted, but a copy of the encrypted data wouldn't do anyone any good. Infact, it would be inseparable from white noise.
Re:Kaplan's view of the defense and its arguments (Score:2)
Implications for hardware? (Score:2)
CSS is a content control system, not a copyright protection scheme. Under the DMCA, they (the MPAA and cronies) could have simply ROT13'd the data on the DVD and as soon as someone figured it out, the MPAA could have gone to court. The encryption doesn't stop copying - under the DMCA it becomes a legal method to prevent the use of a piece of software on a particular hardware platform, fair use be damned!
So what happens if for a new video/ethernet/sound card, microcode that helps control it (on the hardware itself), is encrypted, and by "breaking" it to allow, say, a competing OS to use the card (such as Linux), whereas before one needed the special drivers for Windows, happens? Suddenly, under the DMCA, this is ruled illegal - and thus all hardware could be easily tied to only work with certain software or OS's? Wouldn't this kind of product tying be illegal in and of itself?
And therein, if the DVD is regarded as software, and a seperate product from the licenced DVD player (say a hardware one manufactured by Sony) - requiring the use of one product to use another, isn't this tying illegal as well?
I support the EFF [eff.org] - do you?
Re:You're right, that's a nice argument... (Score:2)
And that supposed circumvention is the heart of the matter. According to the letter of the DMCA, circumvention is descrambling without the authority of the copyright holder, or descrambling in such a way as to infringe the holder's rights. (Yep -- circumvention means two different things in different parts of the DMCA.)
With respect to the copyright holder's authority, their permission is granted when they order the production and sale to the public of a DVD, and by their advertising the disk as a movie to be viewed by the purchaser. Once a licensed DVD is sold, the new owner has the right under copyright law to view the content. It just like sticking quarters in a newspaper machine, opening the door, and removing a paper: I have the *right* to read that paper. Unless the copyright holder arranged some other binding contract before purchase, their only right is to prevent me from publishing copies of the newspaper.
No. My argument is that there are countless licensed disks (tens of millions?) in existence, owned by many (millions?) of people. And every licensed disk owner needs a player. So is that market substantially commercially significant? We don't need a poll to find out -- hunders of thousands of people have already shelled out hundreds of dollars apiece for players, and they started doing it even when the disk market was tiny and the selection limited!
Furthermore, a DVD by itself is worthless. If nobody had a player, there would be *no* commercial market for DVDs. Therefore, the existence of a DVD player in and of itself has commercial significance, by enabling a content market. Furthermore, anything that tended to make players ubiquitous would tremendously enhance the commercial market for DVDs. Ubiquity is a necessary prerequisite for a roaring media market, as has been demonstrated in the past by player pianos, phonograph players, cassette tape players, 8-track players, CD players, VHS players, 5.25 inch floppy drives, 3.5 inch floppy drives, and by the present geometric growth of DVD players. The enhancement of the media market alone means that every DVD player has a commercially siginificant purpose. This enhancement of media market is independent of a player price. With respect to movie sales, a no-cost player and an expensive player have the same commercial significance.
To summarize, not only are people are willing to buy players, the ownership of a player itself has commercial significance.
CSS was kept as a trade secret. No patent was issued for the algorithm, and algorithms are not subject to copyright or trademark. All businessmen know the risks of a trade secret: once it's public, people are no longer beholden to you for the secret.
Under the DMCA, a microfiche projector is a "technological measure that effectively controls access to a work protected under this title". Since a person *cannot* access a microfiche without a projector, this would seem to be a forgone conclusion. This does not, however, stop me from building and selling a microfiche projector, since a projector has non-limited commercially significant purposes.
Un-ask your question. The CSS decoder of an off-the-shelf player is neither licensed nor unlicensed, the MPAA's claims notwithstanding. The algorithm is a former trade secret that is now public knowledge (although the particular machine code or circuit implementing it is probably copyrighted by the manufacturer).
Read the letter of the DMCA. It says a decoder is contraband if any of the following are true:
My argument is that DeCSS has commercially significant use, both by what people would be willing to pay for equivalent decoders, and by encouragment of the disk market. Furthermore, the access provided by DeCSS is not infringing, because the MPAA *wants* you to watch the DVDs you bought from them.
That only leaves the first and third provisions, which are purely a matter of intent and advertising. As long as you intend for DeCSS to be used for law abiding purposes, and you clearly advertise it for those purposes, you're safe. 2600 may have trouble with the advertising bit -- anyone with a regular "Pay Phones of the World" section cannot have entirely pure intentions. ;-)
Re:Other software? (Score:2)
Not that it should matter, but I use LinuxPPC, so the two commercial LinuxDVD players underdevelopment won't work on my system (since I'm assuming they'll be x86 binary-only). This gives me a very good and reasonable motivation to create such a tool.
license to view != license to decrypt? (Score:4)
Does this mean that a copyright holder can put arbitrary restrictions not just on who can view the material but how they can view it?
But later on in the decision the judge says
this seems to say the answer is no, but it contradicts the judges earlier statement that simply decrypting CSS without a license to decrypt it(he didn't say that decrypting CSS is only prohibitted if you don't have a license to the underlying movie) is a violation of the act.If you need both a license to view, and a license to decrypt (the one that comes with the DVD player) that seems to be an arbitrary restriction put on how I can view my DVD.
So if a DVD maker can say that you can only view the DVD on players made by company X, Y, and Z(licensed players) then what stops the a movie studio from releasing the same movie on a VHS and saying that it can only be played on VCR's from Sony(for example?).
Is it constitutional? (Score:2)
Who Is Martin Garbus? (Score:2)
Here's some links to read before you post your questions:
Re:Fair use? (Score:3)
I'm reading from this [eff.org] DMCA text, which hopefully is the right text. Correct me if I'm wrong.
There is a direct argument against the MPAA:
What do you think of this argument? Am I missing anything, or are the DMCA anti-circumvention provisions without teeth (for defendents with good intentions)?
Re:You Will (Score:2)
Yes, you and I know DIVX was a stupid idea and bound to fail. But that's why I think of it as the PERFECT example, because it's the most nightmarish solution possible for future digital formats and it could have the force of law instead of the consumer behind it! Sure such badly put together schemes would fail in the end, but why should you and I endure the years of misery it would take for companies to come up with a resonable standard for these things? To get back to the main point, that's exactly why you should care NOW about the result of this case because it could throw us for a ten-year loop where they try and pawn of BIVX for books.
How hard was the technical aspect of this trial? (Score:2)
Did your team have any trouble getting prepared for the technical parts of this trial, since even the langauge used was in many cases more technical then the average person would be comfortable with?
Before the appeal will your team focus on getting a better understanding of the technology involved, since this might give you a little edge over the attorneys on the other side?
Getting the message through (Score:5)
Kaplan's words (Score:5)
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.
At what point did Judge Kaplan determine this to be the case?
Did the plaintiff make this claim?
Do you feel this ruling will have any residual effects on the Open Source Community?
Do you think the Napster case hurt (or helped) your defense?
Re:Without Fair Use, Copyright is Unconstitutional (Score:2)
Actually, fair use isn't protected by the constitution - sorry.
During constitutional challenges to copyright, these Supreme Court has ruled that because of the provisions for fair use, copyright permitted by the constitution. The first ammendment is an ammendment the constitution, and is thus carves out an exception to Congress's power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]"
If copyright law is interpreted not to include fair use, then the constitution prohibits copyright. As such, the constitution protects fair use. Even before fair use was explicitly written into copyright law, the courts interpreted copyright as allowing fair use in order to avoid declaring it unconstitutional. See among other things CAMPBELL v. ACUFF-ROSE MUSIC, INC. [findlaw.com] (1994), especially footnote 7 [findlaw.com] and the text that references it. I'm sure we'll see these citations come up again when the Federal Appeals Court or Supreme Court overturns portions of the DMCA prohibiting fair use in Universal v. Corley.
Is your strategy based on the free speech issue? (Score:2)
Cease misinforming-you can make a bit for bit copy (Score:2)
Actually, you can copy DVDs bit for bit, just not with the commonly available consumer players in most computers. A number of early models of DVD-ROM burners supported that feature, and although the newer models have specificly had this feature disabled, one cannot get around the fact that the DVD Forum did license those earlier players. In fact, it is entirely plausible that the reason they demanded this change was specifically to affect the outcome of this trial (the timing was just a little too coincidental) - they certainly didn't have a problem with it prior to that.
In addition there are numerous custom hardware implimentations being used by large publishing outfits in Asia for wholesale copyright violation.
MPAA has CSS monopoly? (Score:4)
Kaplan said:
If I understand this, Kaplan's interpretation is that DVD CCA can grant authority to circumvent because of its agreements with MPAA (the copyright owners), and DVD CCA gives that authority to licensed DVD player manufacturers, who in turn grant that authority to consumers in the form of licensed DVD players. Apparently Kaplan neglected the fact that the CSS algorithm is unpatented and now widely known (partly thanks to your client), and that therefore anyone can create a CSS-scrambled work, even non-MPAA members. Therefore, DVD CCA might no longer grant circumvention authority on behalf of all CSS-protected copyrighted work, so even Sony's licensed players may be no more authorized to circumvent than DeCSS is, if Kaplan interprets authorization that way. He has basically made the mistake of equating the algorithm designer with the copyright owners.
My question is: Mr. Garbus, why didn't you call this to Kaplan's attention? Has the defense, up to now, proceded from the assumption that only the MPAA members can create CSS-protected DVDs?
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Judge's Bias (Score:4)
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.
What did you do to give him this idea? Or rather, what could you have done to educate him otherwise? (Or was it a hopeless case of previou$ly held bia$?)
Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era.
Possible impact? What sorts of research did you do (or could you have done) to help show that there is already a huge impact and that the laws as they are just won't jive with today's tech?
The Divine Creatrix in a Mortal Shell that stays Crunchy in Milk
Yelling Fire in a Theater (Score:2)
Example one-
Suppose while I walk down the street or in the mall, I say that the combination to the safe at the local burger baron is 1-2-3. Then I tell other people it's 4-5-6, and so on. Also suppose I have no way of knowing the validity of what I'm saying, and I haven't been entrusted to the combo of the safe at the burger baron. Further suppose that somebody is crazy enough to believe me, break into the place, and actually open the safe with one of the combos I spoke. Did I commit a crime? Furthermore, did I incite disruptive behavior that would deny me protection under the first amemdment? (While this example seems to have no bearing on reality, it is somewhat analogous to the DeCSS case)
Example two-
This example is a little more relevant to what's going on today. Bear in mind what digital means. Files and streams are not numbers physically, they are pulses and aranngements of electrons (or something, please don't laugh at my lack of physics
ajfa.tar = x*(linux-2.2.16.tar)+y*(ppp-2.4.0.tar.gz)+z*(patc
Now as we know the three component files are also protected by copyrights, but they are freely
distributable, while ajfa.tar is not. I understand that the equation itself doesn't break copyright laws, and I also understand that evaluating the equation would leave me with a pattern of bits that I don't have permission to own. My real concern is if by spreading this equation around, am I enciting disruptive behaviour that also denys my protection under the first amendment?
While the second example might not seem to bear directly on this case, I have a feeling that this very problem will present itself at a later date. Digital information is really a two edged sword, as it allows copyrighted material to existed in a form that cannot be copyrighted. The US government states that you cannot copyright a number -- http://www.loc.gov/copyright/circs/circ1.html#wnp
-- Works consisting entirely of information that is common property and containing no original
authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources) --
I consider a number to be common property containing no original authorship (except maybe by God). Suppose that the decimal representation of ajfa.tar can be found somewhere in the decimal expansion of pi. Is ajfa.tar copyrighted, or is it common property?
I have a feeling that even if the DMCA is banished from the books, the "fire in a theater" may come
back in weird ways to haunt people. I'm sorry if what I am saying is hard to understand, as I can have great difficulty at times expressing myself. I also apologize that this question(s) do(es)n't relate directly to the case at hand, but I just felt a strong urge to write about this. I have been running these thoughts through my head for many months now, and I can't come up with a likely judicial reaction to what I have described. I don't really expect you to respond to this post, although I would really like you to read it and mull the ideas around in your minds for a little while. It might help your perspective on what's going on a little bit. If you have already mulled similiar thoughts before, I apologize for possibly insulting your intelligence and depth of thought. I think that if you were to think about this for a while, you might be in a good position to help someone who might need it, and help bring about new insight on the emergence of new technology and forms of expression, where its implementation is not very well understood.
Thank You for your time and persistence.
Thank You also for your excellent work in this suit.
Joseph Rawson
umeboshi2@yoohoo.com (yoo is ya)
Re:How dumb do you have to make your arguments? (Score:4)
With a slight change, this method worked on my 5 year old brother. Why doesn't Kaplan get it? I don't know...
Re:You Will (Score:2)
Anti-trust laws do not prohibit industry collusion in the creation of industry wide standards. In fact, such is generally encouraged.
It is not at all unreasonable to expect DIVX style "standards" to become defacto, or even officially sanctioned by [insert standards body here], particularly if it allows the entire industry to gouge the consumer without signficiant consiquence.
Then there is the reluctance of the government to enforce anti-trust legislation, preferring to wait and hope the market corrects the problem. Whether it is Dubya Bush's pledge to stop the litigation against Microsoft, or Clinton's procrastination of looking into the price fixing by the recording Industry, the result is largely the same: nothing is done until it is often far too late.
The current trend in both copyright law and court rulings is such that the very constitutional purpose for copyright (the creation of a public commons of cultural material) is being destroyed, at the direct behest of the Copyright Cartels and the expense of everyone else, including the artists themselves.
Even more dramatic, it is quite possible that emerging internet technologies such as FreeNet could be destroyed or banned, along with rights we the people are constitutionally entitled to, simply to protect the revinue streams of these large cartels, to which they are not constitutionally entitled.
New Codecs weeken your case? (Score:5)
Re:Without Fair Use, Copyright is Unconstitutional (Score:2)
Sorry, but Congressional laws override case law. (Except when a judge rules a law unconstitutional.) In other words, you've given an example of case law which basically proves that although fair use has been used by the courts for the past many years, it still isn't actually a guarenteed right. It can be taken away through legislation.
You're missing my point entirely. If not for explicitly granted fair use or an interpretation of copyright law that includes fair use, copyright law as it currently exists would be unconstitutional. Remember that Congress's right to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]" as granted by the constitution is abridged by the first ammendment, since the first ammendment by very nature of being an ammendment modifies the rights of both the people and the government as set forth in the main body of the constitution.
If not in the decision that my citation references, then in other important copyright related decisions, fair use has been used as one of the only logical excuses for the constitutionality of copyright. (There was one rather illogical argument based on the premise that ammendments don't really ammend the constitution. It's weak). Based on existing case law, how can one come to any rational conclusion other than either always interpreting copyright statutes to include fair use (as is currently done even when it is not explicitly stated in the statute) or to throw out copyright law altogether as unconstitutional. Since the latter might have undesired side effects for authors and artists without a good understanding of contract law and also cause a revolution within the publishing industry, it's quite likely that the former will prevail.
How dumb do you have to make your arguments? (Score:5)
If you came up to me and said "Bit-for-bit copying of DVDs is and has been available for years", I'd know what you meant, as would most of Slashdot. However, does a judge know what a "bit" is?
Is it a plus or a minus for your cases to be technical? Can you dazzle 'em with bull, or do you have to have a LOT of "experts" up to explain what C or C++ is?
I know that a lot of medical cases are won or lost on the complexity of the issue at hand, but these are generally jury trials. This judgement comes from a judge. Is it a plus or minus to have a technically savvy judge?
Good luck in the next stage -- I wish you all the best, and thank you for your work!
Re:Constitutionality (Score:2)
The constitution is THE law that federal powers derive from, therefore federal judges must always consider it.
He was lazy or hesitant for some reason. He certainly wasn't doing his job.
Comment removed (Score:5)
How about other countries? (Score:5)
So, does the judges decision matter at all outside the USA? Is it also illegal to distribute DeCSS in Europa (or wherever as long as it's outside the US?)
Software as Speech (Score:2)
Whilst I have never looked at the decss source code, I am 99% sure that given a print out of it, a print out of a CSS'd dvd, and a very long time I could unencrypt that dvd.
Possibly the best solution for 2600 is to describe the algoritm and how one would write a program to decrypt it. That way they dont link to the decss source code yet anyone who would actually be talented enough to use it can code their own version.
I also fail to see what the mpaa actually intend to prove through this case. True they can prove that people on this planet have increasingly less rights (since this affects everyone really what with global capitalism) but their actions (and the riaa's too) will merely push what they are trying to control even harder, drawing more attention to it.
What i would like to know however is what the international ramifications of this case are. As far as I know i would be doing nothing wrong if i put my decss source code on my uk based website. Surely i'm outwith the jurisdiction of such american organisations, or am i?
Worst case scenario (Score:4)
Would Americans retain any power anymore to decrypt, reverse engineer, or otherwise pry into the workings of future technological applications? Considering that most everything will be encrypted in the future, from our toasters to our cars, the implications here seem to be complete control of capitalism by corporations.
Re:How is a link not free speech? (Score:2)
the reverse engineering probably took place in Norway, and that legality is not a question: it's legal. even if it wasn't in the US, no US judge has jurisdiction in Norway.
//rdj
Why should I care about this care? (Score:5)
Which is worse? (Score:2)
Re:Judge thinks 'Mr. Johansen' perjured himself? (Score:2)
Unless you can get all of your friends, coworkers, and underlings to tell everyone that it was "all about sex" and then you'll get off scott free.
LK
Defending what you may not understand? (Score:2)
Re:How did this get to the US (Score:2)
Did someone lose the plot. (Score:2)
I maybe wrong but wasn't the case to determine if the posting and linking of DeCSS was a crime, rather than anything to do with the program itself? If this is the case then the argument should have gone along these lines (forgive my over simplistic view).
Fred makes shovels (Jon), Mark distributes Fred's shovels (2600). If Paul (DVD Pirate) goes and beats someone to death with a shovel he got through Mark (and then probably uses it to bury the body as well)
Does this mean that:
a. Mark should be convicted for selling a potentially offensive weapon
b. Fred should be convicted for making a potentially offensive weapon
c. Paul should be be convicted for murdering someone, but given credit (or possibly punished further) for original thinking from a weapon point of view
Now if this is the case (I'm from the UK so bear with me) this seems a bit of a no-brainer, but the bottom line is the MPAA can't be bothered to chase the actual pirates (as their ace pirate buster proved on the stand - and don't even get me started on Jacks testimony). Shouldn't the MPAA be thrown out and told to "Come back when you actually have a case".
In actuality the outcome in the US won't matter. The MPAA still managed to frighten my ISP into submission when I mirrored the code with just an email.
Keep up the fight.
Just my £1 worth (about $1.75 I think)
The Defense Team and Openlaw (Score:5)
As someone who has been a practicing First Amendment lawyer for a very long time (22 years), though not as long as you (this is directed to Martin Garbus), I was, at first, highly skeptical of the idea that a group of mostly programmers could make any meaningful contribution to an actual court case.
But as time went on, the discussions became more focused, my view on that, borne of my own traditional way of doing legal briefs, came to change considerably. I saw arguments being developed (and trashed, where appropriate) that likely would not have happened but for the massive input into that list. Your colleague Ed Hernstadt posted there occasionally, my understanding is that your team was getting good information from there, and even one of your expert witnesses (Ole Craig) seems to have come to your attention as a result of his contributions to that list.
So my question, primarily for Martin, is how much did you really gain from that list? Was the Openlaw/DVD forum really of meaningful help to your efforts, or, at least in the context of providing specific help to the trial lawyers, was it a waste of time for those who participated?
I know, of course, that Kaplan ruled against the defense today, but I'm really looking at the broader implications of something like that forum. Do you see it as something which, in the appropriate circumstances, can have real value to a case?
You're right, that's a nice argument... (Score:2)
Basically, you've presented a good argument showing that licenced commerical DVD players are a commerically signifigant segment. You also suggest that there is a large market for DVDs themselves. Putting two and two together, I'd then assume there is a "black" market for obtaining DVD content without compensating the owner.
Enter DeCSS. What does it do? At the most basic level, it circumvents CSS protection and allows the disc to be read. What's done with data read that way? It's copied. Into memory. On the most basic level, DeCSS copies protected data by circumventing a protection device. What's done with that data is anyone's guess, does it get used to display content, and then get flushed? Does it get copied to a file and passed around those with giga-bit connections? Who knows - DeCSS does one thing: It circumvents a protection mechanism. That's all it does.
Moving back to your argument. What does it say? It says that there is a large market for authorized DVD players. Well, if there were a small market, or people weren't willing to pay $200 to get a decent DVD player, I'd be more willing to agree that DeCSS was fair use. But according to your facts, DeCSS is just a method to cause commerical harm to people selling DVD players and DVD content!
I think that your argument is fairly good at disproving the idea that DeCSS is for "watching DVDs on your operating system of choice." It suggests that people are willing to obtain licenced DVD players. Kinda puts DeCSS on shakey ground - if it's needed for playing DVDs, why not use one of the preexisting DVD players? Seems to me to suggest that DeCSS is not meeting an ignored market.
Honestly, how many of you own DVDs? How many of you watch your DVDs on licenced players? Why are people still complaining about no Linux player? The only possible argument is fair use, which your "facts" do nothing to help. Fair use is the real question, and that's what the appeal will focus on. Fair use is not protected in the constitution; I wouldn't expect a rosey outcome for DeCSS.
Using my legal player for my legal DVDs (Score:5)
If the question looks long to you it is because, to me, it looks like legal stuff I have had to read in the past
Visit DC2600 [dc2600.com]
Re:proving it? (Score:2)
DeCSS vs. Right To Use (Score:3)
My question (Score:3)
Seriously, though, do you think that the judge had a bias due to his previous employment (see article below)?
Judge Conflicted Interest in MPAA/2600 DeCSS Case? [slashdot.org]
DeCSS proponents mischaracterized? (Score:2)
Re:Judicial Bias? (Score:5)
Other software? (Score:5)
Would you think that such an occurance would seriously undermine the utility of the court's award of 'injuctive relief' for the plaintiff? Would that be enough to call the judgement in this case into question?
It would also seem that if the alternative software was specifically intended as a Linux executable, that it would overcome one of the judge's problems with the defendant's case, that being the apparent contradiction with the stated desire to make a Linux DVD player and the fact that DeCSS was originally developed as a Windows executable. Would that difference help or hurt the defendants in this case if/when they appeal?
Re:New Codecs weeken your case? (Score:2)
-Davidu
Extent of the ruling? (Score:3)
Does it ban the specific utility DeCSS, or all software which decrypts CSS? Does it only apply to Emmanuel Goldstein and 2600, or to everyone in the court's jurisdiction? The ruling bans linking - is the court's definition of linking restricted to hypertext tags, or is it more expansive than that?
Is your client going to obey... (Score:5)
On the 2600 web page I saw something along the lines of "If we're forced to stop linking to the DeCSS source, then we'll link to other people's lists of DeCSS sources. If the judge orders us not to do that, then we'll host a text file that contains links to DeCSS mirrors. We'll keep finding ways until the judge is forced to leave us alone or sompletely gut out first amendment rights." or something of that nature.
Is your client going to engage in civil disobedience like that or are they going to give up?
LK
Constitutionality (Score:4)
Isn't that his job? Can you fathom how he justifies this backwards view of the judicial-legislative relationship?
You Will (Score:5)
Have you ever bought a music recording you could only play while the playing device was connected to the internet?
Have you ever had your choice of video output devices limited just because better quality outputs would allow copying?
Have you ever seen a whole world based on the concept you don't actually own any music/books/video you buy?
Unless the DMCA is fixed, You Will!
UNchecked IMbalences? (Score:2)
Re:Moderate this up! (Score:2)
But we must first explain how this affects the public. Some reasons ahave already been given, but a true legal perspective from the horse's mouth would be helpful.
Comment removed (Score:5)
Polarity in the Copyright Debate (Score:2)
Right now there seem to be architectures evolving for both the "everything for free" (Napster, Scour, Freenet, etc) and the "everything for a price" (SDMI, DeCSS, etc) approaches, but do you see anything that is seeking a middle ground? Do you see any developing architectures (both in the legal sense and in the technological sense) that promote a middle ground, protecting copyright holders without trampling on the rights of consumers? If there is nothing out there right now, do you have any suggestions on a framework that might work?
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Speed of Trial (Score:2)
(My thinking is, they wanted to shut down DeCSS quickly, then stall the legal process.)
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Ski-U-Mah!
Code as speach, fire in a theater (Score:2)
Re:MPAA anti-monopoly arguments? (Score:2)
The 2600 legal team did raise the issue that the MPAA members were using the DMCA in a manner that is prohibited by existing antitrust law. Nowhere IIRC does the DMCA explicitly override antitrust laws _or_ require that copyright holders act in an illegally monopolistic manner in order to control access. But the judge appears to have taken the opinion that any means by which a copyright holder enforces access control is upheld by the DMCA, which takes precedence over existing laws.
Which doesn't make much sense - can MGM stab me in the back if I use DeCSS? No. There are obviously limitations on how they can exercise their access control. It seems to me that only methods which don't contradict existing laws (e.g. antitrust) would be permissible.
Additionally, permitting them to operate as monopolies flys in the face of the Copyright clause, which requires that copyrights be limited.
Re:You Will (Score:2)
If I don't like the license, I don't buy the product.
As it stands, the MPAA's position doesn't bother me... so I will continue to buy DVDs.
Where is Xing's Liability? (Score:5)
It is my understanding that Xing's DVD player had the key in cleartext, making it trivial to make DeCSS. In fact, one could argue that if it wasn't done by a 16 year old child, then it would have been done eventually, perhaps by somebody with less aimable motives. Where is Xing's liability in all this?
International laws (Score:2)
How does in you point of view does this case interfeeres with other countries? I ask this because the USA is known to use economic bully startegies to force other contries to agree with patents and stuff (I know that this was the case for medicines here in Brasil, for instance).
I live in Brasil, but as much as anyone else would like to watch DVDs in linux. Do you think that we here can develop a player, or the developer would be tagged as terrorist (as some people who sent prank emails with threats to the white house) and would never be allowed to set foot in the USA?
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"take the red pill and you stay in wonderland and I'll show you how deep the rabitt hole goes"
Re:PLEASE let it not turn out to be... (Score:2)
Algorithmic vs. Legal security (long) (Score:5)
This is a very old issue. There have been laws against going into somebody's residence and taking their stuff, without their permission, since about 5000 years ago. This is legal security - if you steal, you will be punished by the legal system. This has probably worked - probably there have been less thefts than there would have been without laws against stealing. In fact, had these laws never been written, there might be no such concept as "theft" and therefore no way to discuss "theft" and decide that it is a bad thing.
When the Industrial Age began, mass-produced locking devices became accessible to the general population. Sure, there might have been functioning locks on the gates of large walled cities, but there wasn't the technology to provide a lock for the door of every dwelling. Now there is. Locks are algorithmic security.
And now, if you don't lock your bicycle and it gets stolen, you'll get no sympathy from the legal authorities - there will be no legal security for you. In fact, police in some towns claim the right to confiscate any unlocked bike and, if you haven't registered it with them previously, the right to keep it and sell it at auction themselves. Basically, the legal powers have decided that it is mandatory for property owners to implement algorithmic security in order to claim legal security.
However, legal security is still required. Were there no laws against theft, there would be no law against cutting the lock of a bicycle with a blowtorch. But algorithmic security is now considered the main way to secure your property - the legal security is now only a backup plan. Algorithmic security is better, because it works automatically and takes a lot of the work off of legal people.
Therefore, algorithmic security is necessary for a property owner to implement before he can claim a right to legal security.
The MPAA's case extends a little bit further. Algorithmic security, in their view, seems to be not only necessary to a claim of legal security, but is also sufficient.
Their argument is that putting a form of encryption on their product should entitle them to property rights, such as restriction of fair use, that, were there no encryption, they would not have. Normally, fair use rights would belong to the public and the MPAA would not be able to claim any sort of ownership or restriction over these rights. Algorithmic security gives them legal security against theft of things that they wouldn't even own otherwise!
It is as if they're saying that if you have the right to lock a bicycle, that means you own it. And then they requested, and received, the right to lock bikes that they don't own.
So haven't they subtly altered the pre-existing notions of security and property rights? I don't see how I could legally go around locking other people's bikes and then claiming that they were mine, but that is precisely what the MPAA, with the blessing of the United States Congress, seems to be doing.
Extreme Restriction and Resistance (Score:2)
What level of speech is most obviously protected, when it comes to transmitting the DeCSS code and the like, and even referencing where it can be found? Seeing a need for civil resistance to the encroaching infantilization of the general population, and the wisdom of building a good final line of resistance, in case the front line heros like yourselves falter, how can those of us well behind the lines (but often with great access to information technologies) fortify the fallback position so that we can in some future year, like the fabled monks of Ireland, re-establish civilization?
Re:MPAA anti-monopoly arguments? (Score:2)
Not quite. He said that any areas that the DMCA might overlap and contradict, the DMCA would take precedence because it came later.
So, please moderate the original question down so it doesn't end up in the pool. The issue was addressed in the trial. Read the transcripts (I did, every single word!)
what is the proper method of defense? (Score:2)
Since a judge's primary job is to interpret the law, it seems like the DMCA is going to cause the defense quite a headache. I'm not a lawyer so my question may be overly simplistic. But in a nutshell: what angles are being pursued by the defense to win the case, and is it possible that some of these could convince a judge to overturn some provisions of the DMCA?
Best regards,
SEAL
DVD disk viewing in NY state. (Score:4)
Thank you very much for efforts so far in this case, I have a personal and professional stake in the continued protection of freedom of speech on the part of computer programmers and the right to reverse engineer. I hope you continue to stay on the case through appeal, we need your efforts.
I have a few questions for you.
How time dependant is the chalenge to DMCAs constitutionality? Will the appeal be based solely on legal precedent or will the passing years that the DMCA stands work against you?
I am planning on purchasing a laptop with a DVD rom in the near future. Now that the judge has rendered DeCSS illegal to own or use, what kind of legal consequenses do I face I use DeCSS in Linux to view DVD disks on my laptop. Is their any kind of law that would protect me if I am doing it as a protest or civil disobediance?
I live and work in New York state.
Thanks again for your time.
Matthew Newhall
President of the Long Island Linux Users Group
president@lilug.org
Re:Kaplan's words (Score:5)
"Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located."
The First Amendment in this country includes freedom of association. That is, we cannot apply laws differently to people depending on which organizations (or "movements") they belong to.
And we have freedom of the press, which means that we do not have a different set of laws to convict people who express unpopular opinions about hacking.
The judge states in his conclusion that "the dispute...is simply put" and that the defendants belong to a "movement" whose "beliefs" the judge proceeded to find untenable. His entire conclusion references the ideas and beliefs of the plaintiffs and defendants -- except for just two sentences which speak about the law.
Does this send chills down your spine?
Jamie McCarthy
Judge thinks 'Mr. Johansen' perjured himself? (Score:2)
So, is he in trouble (if he would ever return to the USA)?
Are encryption keys computer code? (Score:3)
As a computer programmer I am very concerned that my right to code whatever I please is protected. By making this distiction (between algorithm and key), am I not preserving that right while at the same time protecting the intellectual property of the consortium? How would the situation change if someone developed a key-generating algorithm?
Thank you.
Axel
well there's 'speech' and then there's 'speech'... (Score:5)
Now the real point and question: Why is speech that can cause computers to perform an action not protected, but speech that can cause humans to action (and be much more dangerous) protected? Why can't those in the system recognize that computer code is really no different than propaganda or a user's manual, regardless of what the manual explains how to do? I've always thought that making those 'dangerous' instructions or 'dangerous' ideas was the whole point of free speech. And isn't the point to protect the concepts and ideas of the 'speech', not just a representation of those? Does that mean that if someone were to take the DeCSS source code, and rewrite it as a sonata, or even just specify that it should be read in iambic pentameter, and comment out single function call that it would then be legal? It seems like almost like thought crime. What would it take to once and for all make computer code protected under free speech? and could this case lead to it?
If you could have your life over again... (Score:2)
Also, the summing up sounded very harsh, wrt the defence. However, earlier, he'd also sounded somewhat critical of the prosecution, from the reports. Was he equally critical of everyone, or more slanted towards the "safe and familiar"?
Evil hackers? (Score:5)
While I was reading through the Court's decision today, I picked up the impression that Judge Kaplan was not pleased with the conduct of 2600 before and during the case regarding DeCSS. He seemed to be particularly perturbed about the ongoing linking to DeCSS, the seeming defiance of the law in the encouragement on the website to spread DeCSS, and the use of the phrase 'civil disobedience'. It looked to me that he really bought the 'DeCSS=Piracy' argument that the plaintiffs kept bringing up to the exclusion of all of the important issues raised by the defendants, especially with the part in the last page where he said that "Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located." (my emphasis). This really disappointed me, because I thought the judge was really getting it until I read this.
I guess my question is the following: do you believe that 2600's stigma caused by being a member of the hacker community, or by encouraging civil disobedience, distracted the judge from really diving into the issues that you presented at trial? Also, do you believe that this decision, as well as the defendants conduct, would have a significantly negative effect on appeal?
I do want to add that I appreciate the work that you, the EFF, and the defense put into defending the rights of the Linux community as well as those of DVD owners. I've followed this case from the beginning, and it looks like you guys put out a top-notch effort.
Can you relate deCSS appeals prospect with MS's? (Score:3)
First off, this trial doesn't appear to have three parts, like the Microsoft trial did. I don't pretend to know the differences at work. Can you enlighten us further on why things appear different?
Second, based on the Microsoft trial discussion, it appears that the appeals process is not merely 'redo the lower court trial', but rather focuses on certain aspects of that trial. Accordingly, the decision of the lower court must have in some sense set the stage for the appeal. Can you comment on how this decision sets the stage for a deCSS appeal?
When did you see this coming? (Score:5)
__________________________________________________ ___
What's actually illegal? (Score:2)
If I were to develop a DeCSS work-alike tool in a different language...
Re:The Defense Team and Openlaw (Score:3)
As a non-lawyer who spent A LOT of time participating in the Openlaw list, I must second Jim's question: Did we help you?
Kaplan, given his prior connection to Time Warner, was surely a lost cause from the outset, so I'm not concerned about the result at this stage. But the coming appeal to the 2nd Circuit will obviously be very important.
To follow up Jim's question, I have another for Marty and/or Robin: What actions could we take that would most positively impact the future activity in this case.
This will certainly not be the last legal case where the open source community's interests are challenged: What can the community do proactivlely to become more effective at influencing judicial and/or political outcomes?
Re:You Will (Score:2)
But what if you had no choice but products that had licences like I outlined (esentially, DIVX)? Would you give up movies altogether? Would you stop listening to anything but underground music? It's the start of a slippery slope, and it's better to stop it now while the ship is floundering than grasp for the flotsam of freedom left to you later on.
Think of it this way - every format has been more closed and protected than the format before it - do you really think they would even consider developing something like a normal CD today? You can bet that if there were not already millions and millions of legacy players, they would drop a ton of copyright protection technologies all over the CD format. Imagine not being able to make an MP3 from your CD's because every player sold had protection built in, or not even being able to make a mix tape for a party or your car because the tape player recognized the source as being copy protected.
What Is Desire? or, should the NYT get involved? (Score:5)
He explains that this is OK by analogy of defamation law: if you say something bad about a public figure, part of what they have to prove to convict you is that you knew it was false when you said it. So, your state of mind at the time of the alleged crime becomes legally significant.
The judge is looking for a way to uphold the DMCA without creating a chilling effect that will prevent webmasters everywhere from having to worry "am I going to get in trouble for linking to the wrong thing?" But the act of deliberately linking to a URL cannot be distinguished from desiring to disseminate the information at that URL. That is the whole point of linking: disseminating the information at the other end.
Do you think the judge has noticed that the New York Times -- the same newspaper he frequently references in the titles of precedent-setting legal decisions -- has linked to the DeCSS links on at least three occasions -- April 28 [nytimes.com], June 16 [nytimes.com], and July 14 [nytimes.com]? Most reasonable people would conclude that the Times had "a desire to bring about the dissemination" [of DeCSS] in so doing. What else could it have had in mind?
The Times obviously has a vested interest in keeping it legal to link. In the June 16 [nytimes.com] article, titled "Is Linking Illegal?", the opening sentence is: "A crucial aspect of online journalism is the ability to garnish articles with hyperlinks that instantly refer readers to Web sites related to newsworthy issues."
Do you think the Times will get more involved in this issue? How about if 2600 replaces its links with meta-links (links to links) -- exactly as the Times did -- and gets re-sued?
Jamie McCarthy
Where does it end? (Score:4)
If I break a link into two pieces, with a description of how to put it back together, is that still a link? How about four pieces? Or eight?
If there's a widespread understanding that every tenth letter of one of my posts to Slashdot combine to form a URL (they don't, but I suppose they could if I worked at it), would that also be illegal under this judgement?
Obviously, we could obfuscate the link to an arbitrary degree. Does this really come down to making it illegal for me to express (in any way) a method of finding the source code?
It sure seems to me that that's a violation of my rights to free speech... regardless, it's problematic!
I suppose these same questions apply to the source code itself.
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bukra fil mish mish
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