2600 Responds to Appellate Court 134
BlueTurnip writes: "The defendents in the MPAA vs 2600 case regarding the dissemination of the DeCSS program have filed their response to the court's questions. The brief does an excellent job of answering the issues raised. I won't repeat them here as one can read them directly." Background: hearing transcript. Update: 05/30 7:19 PM by michael : The brief filed by the MPAA, giving their rather different responses to the same questions, is also available.
Re:Non-speech ?? (Score:1)
However, DeCSS does contain some tables - e.g. the main nonlinear function which is an array of 256 bytes. This table is speech, because it is an essential part of the algorithm. The same non-linear function can doubtlessly be expressed as a code function*, but any table is a priori a function and as such should have the same protection as a function written in code. The principle here is: the medium doesn't matter.
* In fact, in the DeCSS authentication routines, there are tables which are simple bit-functions of the input, but are expressed as tables for speed.
Re:Precedents galore (Score:1)
I think it is very likely that they will not be influenced by money and do the legal thing.
The Supreme Court is not worried about stepping on the lower court's toes. The EFF made a good legal case based on law.
The law will prevail. If you don't like the law, get involved and change it.
Re:2600 have no chance to survive!! (Score:2)
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Never gotten a good laugh out of a legal brief... (Score:2)
The longer answer is that, since fair use is the safety valve by which the First Amendment and copyright exist peacefully, if different media permit different levels of individual expression through fair use, then decisions by Congress to impede the most useful means require justification under the First Amendment. A prohibition on using copy machines to make fair use could not be answered under today's First Amendment law with the retort that one can hire monks to scribe the relevant passages.
I thought that was cute.
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Re:Why so glum... (Score:4)
The court's primary source of power is the ability to force congress to conform to their interpretation of the constitution. Allowing this power to take a hit just because one of the parties is big business doesn't seem very consistant (otherwise, Standard Oil would still be the only place to buy gas).
Besides, sooner or later this will get to a court that isn't comprised entirely or Reagan appointees (who, let's face it, tend to be whores to big business).
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Re:"Digital Crowbar" (Score:2)
Accually even that isn't sufficant to call it illegal.
I have personally used a crowbar to remove a window from a house while the rightful owner of the house was away. Of course I was paid by the owner [replace with a more energy efficant window].
Likewise, I could use Decss to remove the encoding from a DVD so that I can create a snippet for use in a scholarly report.
Re:An interesting viewpoint... (Score:3)
Does a machine run C code? Does it run Perl Code?
No, we go to great lengths to translate that language into language the machine reads and understands. Those get 'run'. Programs get written and read and understood by humans. It is their main purpose.
(Further down the path... on a related note and also mentioned in the argument)
Recipies are made for baking cakes? No, ingredients are. Recipies are made for humans to understand and use. Did the recipe tell my arm to add a cup of sugar? No my brain did.
(Back again, and on the mighty "might")
I suppose one might run the program by hand. They might automate a computer to do so. Their argument (as I gather) is that automation or personal execution does not add a non-speach element to expressing the instructions (or in this case expressing a reference to them). Their reasoning did continue along those lines. Whether they argue it successfuly or not is another thing.
~^~~^~^^~~^
nah (Score:3)
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yeah, this could get them in trouble (Score:3)
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Re:We Have a Responsibility (Score:1)
What's interesting about the current day is not that we're using digital encoding of transistors or magnetic regions but that the COST of recopying a work digitally has become exceptionally low. What was once effectively restricted to publishers due to cost is now in everyone's grasp. Even the publishers. (who could run off a nigh-infinite number of mp3s if they wanted to)
When everyone's effectively just as good of a publisher as a big company is, those big companies need to find ways to artificially hobble the masses. Meanwhile, we begin to wonder what the point of assisting publishers was in the first place. (Copyright doesn't help artists much - if they can't copy a work, what good is it? It permits them to choose a particular publisher, but is of greatest benefit to them, not artists)
Re:Legislation was amended (Score:2)
Thus until sometime in the 70's IIRC, software just couldn't be copyrighted. This is where EULAs come from. (which had to be agreed to _prior_ to obtaining the software to be binding)
Eventually, Congress determined that software was worthy of copyright, but this caused a problem in that now the various incidental copies to RAM et al could not be legally made, and EULAs were needed to permit people to do anything with the stuff.
More recently, Congress has determined that although software may be copyrighted, it is also legal to make backup copies and run it so long as it was legally obtained, regardless of a license. Which makes one wonder why we have EULAs....
There are bounds of course on what Congress can do here - they could never eliminate fair use copying for instance, as that derives from over a century of judicial precedent based on the Constitution from which Congress derives its powers. But within their boundaries, you'd be surprised at how arbitrary things could be if so desired. Sadly, they're pushing outwards these days at the behest of their corporate masters....
Re:"Digital Crowbar" (Score:1)
The wheel is turning but the hamster is dead.
unfair moderation? (Score:2)
Re:I have a feeling (Score:3)
Re:An interesting viewpoint... (Score:1)
If reverse engineering software for the purposes of compatibility is legal and
If the contents of a DVD can be considered a piece of software.
Then it follows that reverse engineering a DVD in order to assure compatibility with a Linux system is also legal. Unlike a celuloid film, a DVD movie cannot be held up to the light and viewed by a person. Unlike a VHS tape, it cannot be decoded into a video signal through a bit of analog circuitry. It requires a computer (usually embedded in a DVD player) in order to produce the signal that can be viewed by the user.
Since it is a set of instructions for creating a video and audio signal, that requires the use of a computer to view, I submit that the contents of a DVD constitute a piece of software.
Re:In reply .... (Score:1)
The MPAA claims in their brief: "The trial testimony was unanimous (from both sides) that DeCSS performs two functions: it decrypts an encrypted DVD movie file and then copies it to the user's computer hard drive or other storage device." In which to my reading sais that they claim it CAN'T be used for streaming (ie to play a DVD to the screen) - of course they are full of it and their brief misrepresents reality ....
I take a slightly different read from this. MPAA claims that because you have access to the unencrypted signal, this violates the CSS agreement. They have collusion with the hardware and closed software players not to allow the user to redirect the unencrypted signal, but the problem is that I could buy a DVD and a drive for my computer without ever signing away my rights to use the two on a Linux machine. In this case, I hope common sense will prevail in that if you buy DVDs and a DVD drive, then you can watch said DVDs at home without any other strings attached.
Food for thought (Score:1)
harpoon, or...uh, a...an alligator.
with apologies to Homer Simpson.
Re:Very Important Segment (Score:2)
It was brought up before the initial trial that Judge Kaplan had ties to the entertainment industry that by all rights should have led him to recuse himself. I do not know of any such ties within the Appellate Court.
Legislation was amended (Score:3)
Go you big red fire engine!
Re:arguement styles (Score:2)
Well, now, wait a minute. To be fair, both sides are arguing from analogy. In a case where the issue at hand has never been directly dealt with by a court before, that's all the lawyers on either side have to work with. MPAA lawyers argue that disseminating DeCSS is analogous to some real-world criminal act, and the EFF argues that, no, it's more appropriate to say that disseminating DeCSS is analogous to these other cases dealing with the dissemination of these other types of information. Just knocking them for arguing by analogy is not much of a criticism - very often, that's all you *can* argue. All you can do is present your analogy, and hope that the court finds it more compelling/reasonable/logical/palatable than the other guy's analogy.
That being said, I know which I fnd more compelling, anyway. Now I gotta go find this Bartnicki case and spend some time with that...
Re:arguement styles (Score:2)
Well, sure. You're obviously not sneaky enough to be a lawyer
Seriously, though, they both seek to present their respective cases in the most favorable light possible. The MPAA wants it to be seen as some nasty back-alley criminal operation, while the EFF wants everyone to bask in the glorious golden sunshine of the First Amendment. So, the MPAA is forced to argue that, while at first blush it may seem to be a straight First Amendment case, they think that these other (less noble) cases are more similar to what 2600 did. You may disagree. Truthfully, I do too. But they don't have to convince us, just the court...
We Have a Responsibility (Score:5)
RMS paints a grim picture in The Right to Read [gnu.org]. How sure can we be that he's wrong?
We have a responsibility. We must educate others. We must take some of the profits we make in a market which values our skills and contribute to the Electronic Frontier Foundation.
-Dan
Re:Non-speech ?? (Score:3)
This is arguable, I think. After all, the decoding key is, in essence, a "password".
Imagine someone in the prohibition era ( a strangely apropos setting for this analogy) sending a message to a group of like-minded individuals that says "To get into the speakeasy, go to the corner of 5th and Main street, walk down the stairs, and tell the guy at the door 'Joe sent me.'".
"Joe sent me" is the "specific key" to get into that speakeasy. Does that make the "Joe sent me" part of the message a non-speech element?
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Re:Non-speech ?? (Score:3)
Oh, yes, and before somebody points out that speakeasies were illegal during prohibition, imagine that 'Joe sent me' is the password to get into a number of establishments, some legal and some not. There, now the analogy fits a little better. There are "infringing" uses (getting into a speakeasy) and "non-infringing" uses (getting into the exclusive chess-playing club run by the Mafia boss who happens to also be a chess fiend...), just as the decryption key could, hypothetically, be used to simply watch a legally-purchased DVD or, also hypothetically, to make a decrypted 6GB file that someone wants to clog their broadband lines with nonstop for a day or two just so their buddy on the other side of town can download an illegal copy of it...
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Stronger chances (Score:3)
I whole heartedly agree that 2600's argument style reflects favorably on their case. It is a much more honest and legitimate technique. The BS that the other two lawyers (read the transcript of the trial) tried to pull is one of the reasons that I have overall unfavorable feelings towards the whole legal proffesion.
As for stronger chances, it worries me that the judges even considered 2600 to be any different from the New York Times. In the transcript, they point out that 2600 is arguing as if everybody had been injoined from distributing DeCSS, rather than just them. At another time, one of the judges says something along the lines of "the injunction is very specific: YOU can't distribute DeCSS," and then hints that as such the 1st Amendment is not applicable.
Indeed, it scares me that they would consider the injunction and the lower court's interpretation of the DMCA to be constitutionally valid for the simple reason that only one person's speech is being controlled. A quote I've seen that well expresses my feelings on this is
Re:What keeps getting missed.. (Score:2)
The region-coding stuff is a restraint-of-trade issue, and perhaps an unlawful consipiracy to reduce competition. Someone else should take it up but again it's irrelevant to this case.
Re:An interesting viewpoint... (Score:2)
Re:An interesting viewpoint... (Score:3)
That could have a chilling effect on the information economy, but it could also have some positive benefits:
- Much of the Art is published already, prior art abounds for a lot of the field.
- Longer cycle times (due to the broader ownership rights of patents) mean more time for debugging and, potentially, application of stronger liabilty standards. Liability for an expression is much more limited than liability for a defective device.
- Therefore, better code and better remedies -- look out Bill :-)
Yeah, it's utopian, but it's fun.
Re:What keeps getting missed.. (Score:2)
This is actually how the big DVD piracy rings do things. They create an identicle bit by bit copy of a DVD using a professional grade DVD writer and then use that DVD to create a press.
BTW, the difference in price between the consumer and professional grade DVD writers is about $10,000+ so everyone isn't about to go out and buy one. This difference in price is attributed to the MPAA to keep the professional DVD writers out of consumers hands so that they can't create playable DVD's. The only hardware difference between the two is the lock on writing to the CSS segment of the DVD.
Re:What's the deal with this Garbus character? (Score:1)
He's a principled guy that also has to pay the bills? I don't know, it is an interesting juxtaposition.
Caution: contents may be quarrelsome and meticulous!
Only use STDOUT... (Score:2)
Re:S-C-R-E-W-E-D (Score:1)
2600 may survive... (Score:2)
1) Judges bashing 2600
2) Judges becoming interested... They prolongated the 2600 talk time and continued to ask question that were in no way to 'destroy' their defense
3) Judges seemed to "yawn" at the 2 attackers... and seemed to react "and if they were really trying to screw the honest people with their restrictions"...
4) Judges stopped the second attacker (time over man) to return to 2600 spontaneously and promptly.
5) they left more way to 2600 to express their views by asking questions where MPAA and such answer are already known (always same arguments) but really open questions for 2600
It's only some impression, IANAL, only a man...
Judges seemed to begin with a small bias toward MPAA but to have turned that biase toward 2600 during the auditions.
But there are more and more process about computers and related things... and judges begin to know more and more about that domain... and perhaps can they be not so easily fooled as before...
If it's like in Belgium, judges can't be fired once they are in place (in order to avoid political pressure)... and so, they could think as men and face the MPAA and such... But American law may be different... Anyway, I didn't think that the outcome was bad for 2600...
Re:Very Important Segment (Score:1)
Re:Non-speech ?? (Score:2)
The distinction between parameters and algorithm are vague and unimportant. You could include several decoding keys as a part of the program and allow the user to choose between them. Now they are no longer parameters.
Of course, the algorithm and the parameters are both speech. Now, if you want to tell me that this sort of speech is restricted, there are ways you can defend that position. But saying that it is not speech is silly.
I thought that was the whole point of the folks obsessively encoding DeCSS in different formats. What if DeCSS were encoded as a song? Is it speech, then? A poem? A picture?
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My ass is a device. (Score:3)
The Declaration of Independence is a device (configured as prose, although it could as easily have been configured as a physical machine i.e., a "black box") that accomplishes a mechanical task, namely telling off King George.
Of course DeCSS can be implemented as a physical device! So can all speech! If that's the only thing I ever learned from my algorithms class, then so be it! The Declaration of Independence is a "Parchment Crowbar" for forcing open restrictive government, asshole!
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Implications for copyright law (Score:1)
Re:Non-speech ?? (Score:1)
actually it's probably not going to be 6gb. it's probably going to be somewhere between 300mb and 800mb, DivX encoded, and spread about various sites linked with the warez community.
the download would be somewhere similar to getting a one or two cd linux distro by downloading the isos.
and it seems to be slowly becoming more common.
i guess it's just another case of people going ahead and doing what's possible, because the people that *should* be doing it don't want to. (online distribution of movies, is what i mean)
matt
Re:What keeps getting missed.. (Score:2)
MPAA vs 2600 does unfortunately not touch this issue.
However, there is certainly material for a class-action or antitrust lawsuit regarding the licensing regime forced on DVD player manufacturers.
The probe by the EU competiton directorate seems to be going nowhere. The australians have been making some noise, though.
Re:2600 have no chance to survive!! (Score:1)
Re:"Digital Crowbar" (Score:1)
1. Discussion of and designs for digital scanning technology and OCR.
2. A scanner and some software implementing OCR algorithms
3. Scanning a book and storing the result on your hard disk
4. Posting the copy of the scanned text on the internet.
As far as I know, 1, 2, and 3 are not illegal, and only 4 is illegal as straight copyright infringement. In fact this case is worse that the 'digital-to-digital' copying of DVD contents, since you are able to do a lot more with the result of the 'analog-to-digital' copy process of scanning text than you can with your original analog copy.
Now compare with DeCSS and the DMCA
1. Discuss and design CSS encryption and decryption - illegal
2. build device for reading DVD and software for decrypting DVD contents - illegal if you haven't paid requisite protection money - I mean, license fees
3. Decrypting contents of legally purchased DVD and saving contents to hard disk - apparently legal assuming you somehow get the bits in step 2, but the MPAA would prefer this to be illegal too.
4. Copying to the internet - illegal, but only by virtue of copyright infringement (as it should be)
From MPAA brief
"Surprisingly, appellants contended on rebuttal that the CSS encryption technology is concerned solely with access and has nothing to do with protecting copyright owners from the risks of unauthorized, uncontrolled copying on the Internet. Judge Kaplan, however, expressly found that DeCSS, which circumvents the technological protection afforded by CSS, "is a free, effective and fast means of decrypting plaintiffs' DVDs and copying them to computer hard drives." "
MPAA contends that this is illegal, because DMCA and Judge Kaplan say it is. The question they chose to ignore is 'Is the DMCA allowed to make it illegal?'
Re:2600 have no chance to survive!! (Score:2)
If you believe that, I have an election I'd like to sell you.
Very Important Segment (Score:5)
Moreover, even when the "functionality" of DeCSS is considered, it is important to remember the limited function of this particular program. Despite the Government's inflammatory rhetoric, DeCSS is not intrinsically harmful. No one can use DeCSS to "shut off navigational systems on airplanes or shut down smoke detectors in public buildings." By itself, DeCSS does not even perform any infringing activity. A person can use DeCSS to do only one thing -- access the content on a DVD. From that point a person must choose what to do with the decrypted movie. She could play it on a Linux computer, copy a snippet for a book report, make a personal back-up copy, or feed it into a database to be used for scholarly research, all permissible, fair uses of the DVD content. See e.g. Universal, 111 F.Supp.2d at 322.
That pretty much covers everything we've been saying here and elsewhere about the nature of DeCSS.
I also suspect, as many otheres here do, that 2600 will lose, simply because of its "hacker reputation" instead of due to any substantive factors. And that's rather sad. 2600, I believe, was morally correct in this case.
Too bad my opinion won't be the one that decides 2600's fate.
Correction (Score:2)
But just because the Supreme Court's decision-making capability supersedes that of a local District Court, don't think--not for an instant--that a District Court lacks power and authority. All the powers the Supreme Court has at its disposal are vested in the District Court, within the District Court's area of jurisdiction.
(Now, the Supreme Court does have different jurisdiction from District and Circuit Courts, including a little nugget called "original jurisdiction". But that's not the same as the Supreme Court having any additional powers than the lower courts.)
As an example of a District Court finding law to be unconstitutional, Judge Marilyn Patel, operating out of California, found portions of United States export policy to be unconstitutional--and thus, null and void--in Bernstein v US.
Bernstein was the case which demolished many of the restrictions on the export of cryptography, so it's naturally of interest to Slashdotters.
Re:arguement styles (Score:2)
Hm, I wasn't really talking about their choice of precedent - it is certainly a valid question which cases should be chosen as precedent. But the MPAA seems to argue that there's hardly a need for precedent - it's a *digital crowbar* or whatever. Their choices of precedents seem to be targetting their analogies, rather than the actual situation. Perhaps I am biased (I certainly know which side I wish to win), but the choice of Madsen v. Women's Health Center rather than some more directly applicable case such as Planned Parenthood v American Coalition of Life Activists seems to be a deliberate choice of arguing to the analogy, rather than to the logic.
arguement styles (Score:3)
2600's team argues purely based on the actual situation - comparing dissemination to dissemination, decryption to decryption.
Based on this, I think that 2600's chances are much stronger than most of the posters so far seem to think.
Region coding (Score:3)
i) Region free players being available in Australia, and
ii) Making it illegal for a movie studio to restrict any non-region 4 DVD from being played in Australia if it can be legally imported.
or, the removal of DVDs from the Australian market (not likely).
Of course, this pretty much smashes the whole idea of region coding which requires every country in the world to participate or it won't work for anyone.
In fact, it is actually the region coding that is the primary weapon against the copyright infringement as it prevents the bitwise copies from being made and exported from SE Asia (which has a region all to itself).
Re:I have a feeling (Score:2)
Re:It doesn't make sense... (Score:1)
"Digital Crowbar" (Score:3)
No. ... It is no more "speech" than a key to a library or museum (or a crowbar that could force open their doors) is "speech."
Perhaps this has been covered before, but I sincerely believe they're wrong on this point, and it may be a critical point.
Let me break the crowbar up into three different ideas:
- 1. A complete description of what a crowbar or key or lockpick is, and how to use it.
MPPA is saying that DeCSS is the same as #2. And that, while #2 hasn't usually been seen as illegal, the ease with which it can be turned into #3 (because it's digital) means it should be illegal.2. An actual crowbar/key/lockpick that has been constructed from #1.
3. The act of applying a crowbar to a door, or a lockpick to another's locked door.
This is true.
The problem is... not only is DeCSS analogous to #2, but it's also analogous to #1 since the implementation is necessary to be able to describe it, and to talk about it in a defense sort of way. As such, preventing #2 would prevent any discourse about it because #1 isn't allowed unless #2 is.
This is what the court is trying to get at. Is DeCSS #1 and #2? Just #2? Just #1? Neither? If the final answer is "both", then the injunction can't remain.
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Re:"Digital Crowbar" (Score:3)
The fundamental disconnect in the MPAA's minds is that in the real world, the Description(#1), the Implementation(#2), and the Application(#3) are all obviously separate. But in the digital world, one leads to another so quickly that they're almost indistinguishable. But by confusing the analogies between digital and real, they don't allow themselves to see the full repercussions of their law.
If a scientist turns the Description of an atomic bomb into an Implementation in order to test theory, the Implementation stays with him and can be easily guarded. Furthermore, the Implementation can only be Applied once, and it takes care and technical understanding to Apply it.
But on the internet, one scientist's Implementation is easily copied to everyone, and an evil person can Apply it to many targets in an automated fashion with almost no technical knowledge.
Thus, the Description quickly leads to multiple Application, so the Description must be quashed (ala fear of Bugtraq-ML).
Oh wait...
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Comment removed (Score:3)
Re:Non-speech ?? (Score:2)
Of course, Patel is also the same person who signed Napster's death warrant.
Re:What's the deal with this Garbus character? (Score:2)
Judge Marilyn C. Patel gave the ruling in the Bernstein case that source code was speech. On the other hand, she also gave the ruling in RIAA v. Napster.
Re:arguement styles (Score:3)
Last I heard, it was legal to own a crowbar, and to tell people where to get a crowbar. Heck, I own one myself!
Oh no! Now the police will arrest me!
What's the deal with this Garbus character? (Score:3)
Sorry if someone's already pointed this out on Slashdot. I haven't seen it.
Re:An interesting viewpoint... (Score:2)
That a person "might?" Where does "might" come from? I'm not sure where these EFF guys have been, but most programs actually get run much more frequently than they are used for interpersonal communication. I'm not saying that programs aren't used for communication - they are. It's just not their primary purpose.
The question is not whether non-speech elements exists when "programs actually get run", but whether DeCSS itself has non-speech elements. You are confounding the program as an entitiy with the action of running it. Any conduct that exists as part of the latter act is done by the programs user, not the author.
Maybe running programs is a "non-speech element", though most devices that ordinary computers control are speech devices (monitor, printer, speakers), so I won't even cede the point that running a program has non-speech elements. Does running the "authorized" DVD player program have non-speech elements? All it does is show the movie - an action that results in pure expression. Why does that change if the player program isn't "authorized", after all we are talking about non-infringing use of the movie (private performance).
Re:I have a feeling (Score:2)
The higher in the system you go, the more sensitive judges are to the fact that you must protect even the scumbags in order for rights to have meaning. Consider the Brandenberg case the judges asked about. It upheld the rights of KKK members to advocate racially motivated violence. Against that backdrop, hackers look like Mother Theresa.
In reply .... (Score:3)
In which to my reading sais that they claim it CAN'T be used for streaming (ie to play a DVD to the screen) - of course they are full of it and their brief misrepresents reality ....
Re:2600 have no chance to survive!! (Score:3)
Re:It doesn't make sense... (Score:1)
Precedents galore (Score:1)
I dearly hope that 2600 does win. But I don't think it very likely.
Re:Short term - bad; Long term - good (Score:1)
Re:Face it, DMCA is 100% fair (Score:2)
What I find particularly amusing about this is that we are allowed to make copies of our keys to get into our houses, in case our originals get damaged, lost, etc. But we are not allowed to make copies of our "keys" to view DVDs? Why not? Those "keys" aren't patented or copyrighted, to my knowledge.
I find your analogy to be flawed.
Re:"Digital Crowbar" (Score:1)
Re:We Have a Responsibility (Score:1)
We need to remember that DVD's are just a product. If you don't like the product, and you don't buy it, the DMCA steals nothing. What happens if in the future we are allowed to copy DVD's with ease, and if then piracy runs rampant. Woudn't the industry abandon DVDs? Then we wouldn't get the movies at all.
Re:MPAA feedback line (Score:2)
2 points that weren't touched... (Score:1)
2. How about throwing the "digital crowbar" idea back at the MPAA. Crowbars are used to get into containers when other means aren't available.
Say you have a locked box and no key, it's ok to use a crowbar to get at what's inside of the box. That's exactly what DeCSS does. The 'box' (DVD) is 'locked' (encrypted), and you don't have a 'key' (authorized viewer), so you use your 'crowbar' (DeCSS) to get at what's inside (movie).
Re:2600 have no chance to survive!! (Score:2)
Re:2600 have no chance to survive!! (Score:2)
This is Slashdot, right? It's been done.
Short term - bad; Long term - good (Score:2)
Eventually we get a battle of the titans, with MPAA saying software isn't speech and M$ saying it is. I don't like the way that we'd have to get there, but that would be one hell of a court case to watch! And I reckon that in the end Bill would win it. See, you've just got to twist the system until it works for you.
Re:Short term - bad; Long term - good (Score:2)
Re:2600 have no chance to survive!! (Score:1)
However, I do recall a ruling saying that source code was speech and protected under the first amendment. Thus the source code itself is not illegal and linking to the source should not be illegal. However, using the source code inappropriately should be the only legal action that should be taken and only against users who use the source code illegally (i.e. to copy and distribute DVD's). But if I just want to watch a DVD that I legally paid for and the MPAA just hasn't got around to supporting my platform, that's the MPAA's problem. After all, I don't see 'Requires Microsoft Windows' written on my DVD case anywhere.
Re:First Amendment arguments and Professor Netanel (Score:2)
Huh? How does that make any sense? It's not the government taking our rights away, it's our legislation and our courts? What the Hell do you think our government is? Are you actually this stupid, or do you just pretend to be to see how many moderators you can get to agree with you?
Yes, corporate lobbying has subverted certain laws in their favor. I'm not sure what can be drawn from that though. Make more laws, and corporations will subvert those too, because corporations always concentrate power and money on laws they don't like to a degree that the public at large never could. Do away with corporations, and you will still have some powerful special interest that will do the same, to other laws.
The only conclusion that comes to mind for me is the same old tired expression: the price of freedom is eternal vigilance. Fewer laws and stronger constitutional restrictions on lawmaking are our best protection against any subversion by the Powers That Be.
The only "intuitive" interface is the nipple. After that, it's all learned.
Re:2600 have no chance to survive!! (Score:1)
Re:I have a feeling (Score:1)
Re:Non-speech ?? (Score:1)
Interesting.......
Are you trying to suggest that the algorithm could be distributed as a form of speach, but that the keys for the algorithm are protected in the same way as a password is?
Like PGP. Anyone can pass the code around. Giving someone the kPGP Key for a bank, on the other hand, would then be illegal.
I don't want this remedy, but it seems reasonably neat. Thoughts?
Emotional Reaction: Fear and Sadness (Score:2)
The MPAA statement about Guns having rules against them is valid but ONLY because it has been PROVEN beyond a shadow of a doubt that overt acts of violence come from guns. I do not support Gun Control, but this in NO WAY relates to a product that HAS NOT been proven to have 1 incident of copyright infringement.
This is where I am scared and sadened. My daughter or my Son will not be able to access certain sites in the future because "It may cause people to kill", Wont be able to play games because "It may cause people to freak out". In the end, the freedom from speculatory laws is dying out.
Anyone else see this obvious thread? Or am I totally off my rocker and nothing bad will come of this?
¹Interpreted languages (Score:1)
Never mind that source almost never gets run
Perl, JavaScript, PHP, they're source and they get run. And yes, qrpff [mit.edu] is an implementation of decss in Perl.
Eldred v. Reno (Score:4)
Sometimes the only way to get rid of bad law is to FLOUT it
Sometimes you can flout it a little at a time to take advantage of the "slippery slope" phenomenon, by pushing the limits of fair use and creating works that are barely legal [everything2.com] (but not in the kid porn sense).
Remember YOU CANNOT DISPUTE A LAW UNTIL YOU ARE CHARGERD WITH VIOLATING IT. One cannot simply say, "I think the DMCA sucks. I'm going to sue the Fed to repeal it." No court will even listen to you.
Except that's exactly what the Eldred v. Reno case [harvard.edu] is about, suing Attorney General John Ashcroft (no relation to Richard Ashcroft of what was once the Verve, who the Perpetual Copyright Act [gotinhisow...fahrefhttp] that Congress passed during Zippergate to escape media attention. Think of it as a double "Wag the Dog": Kosovo was a cover for Lewinsky, which in turn was a cover for the Sonny Bono Act and the DMCA.
Re:2600 may survive... (Score:2)
Those are the questions to be frightened of. Any time an appellate judge asks for more information during oral argument, he's skeptical of the person being examined.
5) they left more way to 2600 to express their views by asking questions where MPAA and such answer are already known (always same arguments) but really open questions for 2600
Another bad sign, IMHO. If the judges are committing procedural errors, they may be setting themselves up for an appeal-intentionally. What it looks like to me is, they're aware the current case law may require them to rule in favor of 2600, but they're hoping to create enough fuzz in their handling that the Supreme Court is effectively forced to take the case on appeal. That's how judges say "The law requires me to rule as I've ruled, but I think the law sucks here."
If it's like in Belgium, judges can't be fired once they are in place (in order to avoid political pressure)... and so, they could think as men and face the MPAA and such... But American law may be different...
In the US, Federal judges are in place effectively for life. They can only be removed through an impeachment process in the Congress, and fewer than a dozen have been removed in the 225 years that we've had the Republic. State judges can be removed more easily in some states, but that really doesn't matter because this case isn't being heard in state court.
Anyway, I didn't think that the outcome was bad for 2600...
We can hope. The question probably won't be settled until the US Supreme Court rules, but we can hope.
MPAA broke the law! (Score:4)
First Amendment arguments and Professor Netanel (Score:4)
An interesting paper referred to in the EFF 2600 brief is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =267848 [ssrn.com]
entitled "Locating Copyright Within the First Amendment Skein" by U Texas law professor Neil Netanel. A few excerpts from that abstract:
The big media publishers claim ownership of the means of production for all "intellectual property" and they have bought these new copyright laws from Congress in an attempt to maintain control over all use of "their" products in the new digital age of the Internet.
These media giants have argued (so far successfully) that the First Amendment has nothing to do with copyright law because of the distinction between idea and expression and between expression and action. The courts in Eldred v. Reno (now Eldred v. Ashcroft) against the copyright term expression agreed with this argument (wrongly, I believe).
If courts continue to fail to wake up to the changed circumstances that Professor Netanel notes, then the First Amendment will not protect us when we publish anything on the Internet. First it will be the "hackers," then the rest of us who will be pushed off by these "rent-seeking" monopolists. Look, libertarians, it has now become apparent that it is not government that is taking away our First Amendment rights, it is courts following bad legislation that only favors big publishers.
Professor Netanel is a real conservative who has long resisted the arguments of his more liberal colleagues that Free Software deserves some protection against the media giants using copyright law. We should be glad he is now on our side. The 2600 arguments are strong and deserve to win.
Re:2600 have no chance to survive!! (Score:2)
I might agree with you in this case (I'm not sure), but there are times when civil disobedience (aka "breaking the law") is necessary to move change forward. For example, black people sitting in "unapproved" seats on the bus was probably a necessary catalyst to bring attention to the injustice of those laws.
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So what your saying is.... (Score:2)
From the bad guys rebuttal:...the use of DeCSS to decrypt an encrypted DVD has no "speech elements," just as breaking into a museum or library -- or using a computer to break an electronic lock on a library door -- cannot properly be said to have "speech elements."
Brings up an excellent point. Maybe this whole DeCSS decryption isn't speech, and maybe it is bad. So it must be against the law to break into your own house if you lock your keys inside? Because you bought it and own it do you think you have the right to break in? Oh no I got news for you buster, you don't own shit...(Life, Liberty, Property, my ass John Locke)
IMHO you bought the DVD you can wipe your ass with it, as long as you follow the little green screen warning sign at the beginning, or the FBI might get you. I'm trying to be on good behavior just in case someone presses charges for tearing off my mattress tag...
Rehab is for quitters...
Re:Very Important Segment (Score:2)
I'd like to think the higher up you go in the court system, the less ad hominim attacks become relevant. If these justices are flawed in their desicion making process, the matter will see the supreme court. Hell, it will probably see it anyway, because the MPAA and their kin won't give up so easily on a law they bought and paid for.
Re:I have a feeling (Score:2)
Just because 2600 Magazine has a "hacker" stigma, Sec. 1201 will not hold up in court if the defendants (Apellees) can't make a strong case.
I think 2600 Magazine will win.
'nuff said.
great highlights (Score:2)
No one can use DeCSS to "shut off navigational systems on airplanes or shut down smoke detectors in public buildings." By itself, DeCSS does not even perform any infringing activity. A person can use DeCSS to do only one thing -- access the content on a DVD.
There is no First Amendment precedent establishing that a "causal link" between publication of speech and its "improper use" justifies the imposition of intermediate scrutiny.
Under the "Turner" standard, the burden rests upon the government to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.
A prohibition on using copy machines to make fair use could not be answered under today's First Amendment law with the retort that one can hire monks to scribe the relevant passages.
With due credit to the aforementioned and linked article.
Overall they really hit on the "fair use" derivation of the 1st Amendment, which I think is a proper tactic. Fair use isn't too useful if it ain't useful. :>
Why so negative... (Score:2)
Judicial Review (Score:2)
This is what's known as 'Judicial Review'. Courts can overturn and invalidate laws if they overstretch the bounds Congress is held within (namely, the constitution, or previous laws that contradict the newer law). Lower courts don't do this, but the appeals courts and the Supreme Court DOES do this.
I think writing your Senator or Representative is a good step, but since this is already law, the most appropriate thing to do is watch the courts deal with it.
Why so glum... (Score:3)
They have challenged the linking aspect. The law applied by the lower court was incorrect. If the higher court finds this to be the so there will be no case to answer. In fact the lower court will probably be advised of it's incorrect position.
The higher court is asking the defence lawyers to justify their clients actions. The fact they asked for justification means they are not closed to the idea that a lower court made a mistake.
Unlike a lot of posts I'm fairly happy about the tone and intelligence of the courts questions. They are seeking to establish under what precedent the prosecution has to show guilt.
Remember the court will judge cases not on good/bad, wrong/right it will usually follow precedent and the law.
An interesting viewpoint... (Score:2)
DeCSS itself has no non-speech elements. It is a set of instructions written in a specific professional language that expresses ideas to those who can read that language. Computer programmers and scientists communicate using programming languages because these languages are an unambiguous mode of expression... That a person might use a computer program to do something does not by itself add "nonspeech" elements to the text.
That a person "might?" Where does "might" come from? I'm not sure where these EFF guys have been, but most programs actually get run much more frequently than they are used for interpersonal communication. I'm not saying that programs aren't used for communication - they are. It's just not their primary purpose.
Now, copyright law recognizes software as expressive content. Heck, even a COMPILED EXECUTABLE is recognized as expressive. They may have better luck pointing out that ambiguity than in trying to say that the main purpose of source code is to communicate with another human being.
I have a feeling (Score:3)
I feel that perhaps the court will stand in partial favor but still judge against them. The larger money will win this simply because they have demonised 2600 into hackers that steal credit cards and kill people via their keyboards from far away.
The funny thing is that I would trust 2600 with my credit card before I would trust the MPAA. Infact I did when I subscribed.
The Lottery:
Re:2600 have no chance to survive!! (Score:2)
Do terrorist groups have magazines? (Score:4)
However, can one really redefine a magazine as a mere solidification of the authors ill will if one does not agree with the content, or that content is socially unacceptable? If Bin Laden published an informative piece on how to make TNT (which has many legal uses), would he be protected under the first Amendment? Is the Anarchist's Handbook protected?
Do we really want to venture into the realm where socially unacceptable knowledge is deemed through inference to be not knowledge?
Aside - It's interesting how the MPAA keeps referring to DeCSS as a way of opening a museum with a crowbar. If I bought the museum, can't I open it any way I want? Furthermore, aren't crowbars legal?
-Cgenman
There's a higher law (Score:3)
Non-speech ?? (Score:5)
2. Does DeCSS have both speech and non-speech elements?
No. DeCSS itself has no non-speech elements. It is a set of instructions written in a specific professional language that expresses ideas to those who can read that language. Computer programmers and scientists communicate using programming languages because these languages are an unambiguous mode of expression.
Translation: an algorithm is a form of speech.
But AFAIK, DeCSS (as many programs) has 2 parts: the algorithm and the parameters (the decoding key). Are the parameters a form of speech ? I wouldn't think so.
Just like for pay-tv descramblers (eg. Nagra based), you can distribute the program that does the decoding, but you are not supposed to distribute the specific keys for the channels you want to see (Premiere, Canal+) ?
Just my $0.02
Re:2600 have no chance to survive!! (Score:3)
The DMCA is Unconstitutional and itself illegal and UnAmerican. Posting the DeCSS code is an act of Civil Disobediance against this very bad law. Civil Disobedience is an American tradition dating back to the Boston Tea Party, I doubt you would argue the Founding Fathers were wrong nor do I suspect you think the Civil Rights movement of the 60's was wrong either. Some times we have to take the fight to the streets and alleys otherwise things don't change and this is one of those times.
It doesn't make sense... (Score:5)
If that is the case, then how could you have copyright on software? Doesn't the fact that software is copyright-able indicate that it is a form of expression, like written/spoken words, recordings, music, graphic art, or even films.
How can the courts in one instance rule that software has the protection afforded to other forms of creative expression when it comes to copyright (intended to be limited in scope), but then rule that it does not have those protections when it comes to protecting speech (intended to be a broad, unassailable right)?
Short answer: MONEY
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Re:2600 have no chance to survive!! (Score:2)