DeCSS Injunction Reversed In CA Case 480
kinesis writes: "For those of you following the California DeCSS case, a court of appeal just ruled in our favor, overturning the injunction imposed by a lower court. The court's opinion is available in DOC and PDF versions.
It's a great read for those who want to really understand the case. The conclusion is nicely summarized with this quote: 'In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.'
" Or you can go straight to the PDF.
This just rocks.. (Score:5, Insightful)
computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"
This confirms my theory that there are more sensible people in the world than I previously expected. I just loved the part where they upheld the belief that "computer source code" being an expressive means for the exchange of information among geeks. I mean, that just rocks..
Wow (Score:2, Insightful)
Boasting (Score:5, Insightful)
So essentially, nobody ever boasted that they reverse-engineered the thing, or that they clicked on a license... But simply by saying "CSS sucks" and "the DMCA is a stupid law, I should be allowed to post whatever I want", you can find yourself the defendant in a trial for which the plaintiff has minimal evidence against you?
Those nasty kids. We didn't have any real evidence against them, but they were so disrespectful.
Re:Look out, Taco. (Score:1, Insightful)
You're an idiot.
Re:Cheap (Score:3, Insightful)
We can go back to bashing Fritz and the other representitives from Disney in another article.
Re:Yes, *but* (Score:4, Insightful)
Agreed. They explicitly state that there are Constitutional issues with Copyright. However, this is a "Trade Secret" suit, brought under UTSA, and the court held that the First Amendment trumps trade secrets, since there is no constitutional basis for trade secrets (unlike Copyright).
Re:My Favorite citation from the Decision: (Score:5, Insightful)
The door is still open... (Score:2, Insightful)
I'm suspicious of WinXP and other versions for that matter. I'm suspicious that even though the SSSCA seems to have been put to bed for the moment that assaults on our systems are yet to be devised.
So far the privacy of your own home is almost intact but this will be an ongoing game.
Encouraged but still paranoid.
Re:Why America Doesn't Suck (Score:5, Insightful)
That would be kinda like the town bully organizing a gang, only to have his mom tell him he can't go out on the night they had planned to spray paint the school.
Re:Nonsense (Score:3, Insightful)
Re:A paradox? (Score:2, Insightful)
Trade secret law is a state issue and thus does not invoke a competing constitutional issue.
Finally, the court didn't say that it was okay to disclose DeCSS. They said that the government cannot act to prevent disclosure before it occurs by issuing an injunction. No prior restraint.
Re:I'm sorry... (Score:5, Insightful)
However -- look how long it has taken. Two years, I believe. The problem is that large companies and consortiums of companies can run roughshod over individuals with impunity. Sure, it'll be overturned if someone can scrape together enough money or get enough support to go to a group like the EFF, but it takes *years* to do so. In the meanwhile, their business practices continue unabated.
Will right prevail eventually? Kind of, maybe. But the point is that they shouldn't have the nerve to try to forbid people from playing their own DVDs with any software they choose. You buy the DVD, you should have the right to play it and enjoy it anywhere at any time. You're not infringing on their rights by doing so -- but they're infringing on yours by trying to limit what you can and can't do.
People *should* go ballistic when their rights are trampled on. Thank God this guy was willing to fight.
While you have certain rights on paper as a citizen of the United States, if no one stands up for those rights it's the same as not having them at all. Look at what Ashcroft and his cronies are trying to do... until the Terrorist Act makes its way to the Supreme court, it'll be used to abuse the rights of many people -- I guarantee it. People who are not a threat to the country or our safety, just people who are nuisances to large corporations and/or the present administration. I have no doubt that that law will be overturned eventually -- but probably five to six years from now, after doing amazing damage to people who don't deserve it. Someone will challenge it and prevail, others without the money to go through the process of appeals and whatnot will simply have to take their lumps or worse.
If that's not worth getting upset about, I don't know what is.
The real issue is the trade secret status of DeCSS (Score:5, Insightful)
The real stakes are the loss of the DVDCCA monopoly over permissable player features.
The entire DVD industry, through the DVDCCA, have devised a set of mutual licensing handcuffs that they are all to wear -- DVD player manufacturers may not manufacture DVD players with unencrypted digital outputs. They may not manufacture and sell region-free players. This keeps the ability to make fair use of DVDs out of the hands of consumers.
If the trade secret status of the decryption algorithms is found to be lost, then third parties, not bound by restrictive DVDCCA licenses, may well be free to offer DVD players with such consumer-friendly features as unencrypted digital outputs, no region codes, and the ability to fast-forward over unwanted trailers and FBI "notices", while the entire current DVD player industry will be unable to match those features, due to their contracts with the DVDCCA, without in effect dissolving the entire licensing structure and having to compete in, horrors, an open, unrestricted marketplace.
Those are the real stakes. They have nothing to do with copyright infringement, and everything to do with what may turn out to be a "suicide pact" amongst all DVD hardware manufacturers.
The court offers soothing, reassuring words to the DVDCCA and current player manufacturers:
We express no opinion as to whether permanent injunctive relief may be obtained after a full trial on the complaint, as that issue is not before us.9 We further have no occasion to decide whether damages for Bunner's disclosure would be appropriate in these circumstances. DVDCCA may, of course, bring an action for damages or even injunctive relief against anyone who violates the Act by conduct rather than speech.
"violates the Act by conduct" presumably means to manufacture an unlicensed player, and that's the real reason that the MPAA/DVDCCA is spending millions of dollars suppressing DeCSS.
Re:Nonsense (Score:5, Insightful)
"that's like saying bridges are the preferred method of communication among civil engineers. code is for compilers, text is for people."
Source code *is* text, except in languages like National Instruments' LabView.
Blueprints and engineering drawings, not bridges, are a suitable method of communication between civil engineers. They can be "converted" to bridges by builders reading the blueprints. That does not destroy their value as a medium of communication.
Source code is a way to express an algorithm in a way that it may be *both* understood by humans and converted into executable form.
The court specifically recognized that the corresponding object code would not be a medium of human-human communication, but rather in the nature of a mechanical device.
The quote you made from the decision is in the context of discussions of encryption. Surely, for a complicated encryption algorithm, the clearest, most precise, and most unambiguous expression would be a code-like representation, whether in pseudo-code or a real programming language.
Are you suggesting that bridge designers communicating with bridge builders by text alone would work? Do you think the bridge would at all resemble the true intentions of the designer? Would it even be safe to walk across? I believe we would clearly prefer that communication to take place through accurate drawings.
Likewise, discussions between cryptographers and people implementing encryption systems would almost certainly be most accurate if conducted using code-like constructions. Accurate descriptions of encryption technology are essential to avoid potentially serious errors, such as security flaws. Therefore, communication in source code is far preferable to ordinary text.
Implications of the decision (Score:5, Insightful)
IANAL, but it seems to me that it boils down to the appelate court saying (with a lot of other things):
Source Code is Free Speech. DCMA cannot override the right of free speech, especially if it does not involve the use of slander, libel, or "fighting words".
Therefore, you cannot have a trade secret law, especially one from a state, override the constitutional right to free speech. Ever.
This implies that I can thereby describe WINE as free speech, and MSFT can't sue me for trade secrets, since it's an alternate method for responding to inputs and outputs.
This also implies that DCMA is functionally flawed on a constitutional basis.
This lastly implies that the only way to overturn this is to have the US Supreme Court or some higher court overturn this decision.
Good.
Time to start coding!
Re:The real issue is the trade secret status of De (Score:2, Insightful)
Re:Pinch me. (Score:3, Insightful)
It's all a matter of civil procedure. That is a factual matter that might come into play if this made it to the trial stage. This court proceeded based on the assumption that the DVDCCA would prevail at trial on showing its claim that the EULA was valid. So no court has reached the merits of that issue yet. What this court said was basically that the trade secret act could not bar distribution of speech unless that specific person was contractually obligated to do so (ie had voluntarily waived their First Amendment right by agreeing not to disclose it). They cited the recent Bartnicki v. Vopper case to justify this viewpoint.
In sum, it doesn't matter whether the EULA is valid -- a EULA can't stop 3rd parties from posting code. The court completely ignored Kaplan's opinion (!!!) , an act that speaks volumes through silence, and ruled that source code sitting on a web server is "pure speech".
This is very, very good.
Re:Pinch me. (Score:4, Insightful)
As physical items become (nearly) as close to free(gratis) as information can be now, I fear the effects of existing business being guarenteed a profit despite a change in technical ability and need. In that vain the, FCC owning all the airwaves and dolling them out to a few chosen ones under certain conditions is very much like feudalism. If this end justifies the means (legally destroying time shifting while defending corperate profit) We are setting up the legal tools to legally enforce true feudalism in meatspace.
The legal decisions of the next 10 years can make the next 60 heaven or hell. Near godlike control over the structures that make up all physical matter and physical scarcity needs to distributed among all that do not abuse it. Damn Hollywood for not having vision beyond quarterly reports, and damn us for not fighting them harder.
Respect for creativity and self reliance over profit is esential for invention, self respect and true inovation. Liberty or death.
The real villian is still DMCA (Score:3, Insightful)
The real obstacle ahead is the DMCA, which gives legislative weight to EULAs. In this case they weren't challenging the DMCA. The court sidestepped talking about the DMCA issue by claiming that they were not going to rule on whether Jon Johannsen's reverse engineering in Norway was "proper". But that's the real problem here: we are still being denied our "fair use" of software, and it's not even clear whether people in countries with less restrictive laws can exercise those rights for us.
It doesn't look good in this area to me. I doubt the DMCA will be overturned since the issue here is not "free spech" vs "trade secrets", but "IP rights" vs "fair use". IP rights are guaranteed in the constitution and its not clear that "fair use" is. The best we can hope for is that some court will rule that the constitution both guarantees those IP rights but also limits those as well (a la "fair use") and thus EULAs can't impose Draconian rules on how to use software.
Re:The real issue is the trade secret status of De (Score:3, Insightful)
I thought the algorithms stopped being "trade secrets" as soon as they were publically know.
this helped final judgement (Score:2, Insightful)
1. computer source code is speech
2. DeCSS is probably legal in any case if it was not wrongfully obtained
While point #1 may help other cases alot more than the fate of DeCSS, it certainly helps a great deal.
Point #2 is what is really going to help give us the result we want in the final court. Most of the argument in the pdf hinges on whether or not the info for DeCSS was wrongfully obtained. They further boil it down to the click through agreement(and then stop, as they claim to not want to make a decision here). If later courts follow this logic, their cases will hinge on the validity of click-through licenses. These licenses never have been upheld; companies like to pretend they are legal but no court would support that because it only serves to screw over the consumer. If later courts follow the logic precident made in this case, we are all set.
However, if $ talks then certain judges may choose to ignore this. I guess we have to hope for honesty.
Use of DeCSS Can Still be Enjoined (Score:2, Insightful)
The appeals court still allows relief on any action that violates the trade secrets. It just allows the source code speech. My humble interpretation -- You can post the DeCss source code, but you can't compile it (object code not speech accd. to CA appeals court) or use it (action).
One possible problem... (Score:2, Insightful)
But I found one fatal flaw in the decision, which could basically negate the conclusions when the case goes to trial.
On page 2 of the opinion, in the factual background section, the court states "DeCSS consists of computer source code which describes a method..." and in a footnote describes computer source code as "the language in which computer programmers write their computer programs."
Later in the opinion, in their analysis of the applicability of Junger vs Daley they first quote from that decision: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment." And further add "If the source code were compiled to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas."
And a careful reading of the opinion makes it clear, they rely heavily on this analysis of Junger vs Daley in reaching their decision to reverse the preliminary injuction.
The problem is there is an error in their factual background. DeCSS is not source code, but rather a precompiled Windows executable! As far as I know, Jon Johansen has never even released the source code, and even if he as done so by now, he hadn't at the time this suit was brought. I haven't read all the trial documents, so I don't know how this error crept in, but it quite clearly an error. There was a source code package called "css_auth" which was to be included in a Linux DVD driver, and it had the effect of authorizing a DVD-ROM drive to read the keys required for DVD movie playback, but DeCSS is something different entirely, and it is clearly compiled object code, and not source!
You may object at this point that there really isn't a difference between source and object code, as was pointed out by Dr. Touretzky in his testimony in the MPAA vs 2600 case in New York, but this court clearly defines the difference between the two as it understands it, then clearly mislables DeCSS as "source code".
Don't get me wrong, I sure hope Bunner wins this case, but the fact that the one decision in his favor is based on a major factual error does not bode well.
Re:Look out, Taco. (Score:5, Insightful)
Dur-hey.
This is because those of us who actually understand these machines have realized their economic implications, and that they make copyrights obsolete.
Computers are designed to copy things. Indeed, computers as we understand them today would be useless if they lacked the ability to copy data and move it around. What the Feudal Intellectual Property Lords are trying to do is tell you, down to the smallest detail, what you can and can't make copies of, and what you can and can't do with those copies.
Consider the program Cthugha [afn.org], which is an audio visualization program. It takes the digital representation of the music on CD and turns it into a light and color show. The IP Lords assert that, unless you have been granted explicit permission by them to do something with "their" music, you should be held criminally accountable. They have never granted explicit permission for you to run "their" music through a color organ. Hence, copyright violation.
Further, since the output of Cthugha is directly related to the musical input, the output could be construed as a derivative work (since there is no new "creative material", only a purely mechanical translation from audio space to visual space). Absent a license, derivative works are expressly prohibited by copyright law. Hence, using Cthugha is a copyright violation; and Cthugha could be held as a device whose sole purpose is to violate copyrights, and would be banned. (And after all, why should Cthugha's authors [afn.org] profit even reputationally from a color organ that would be useless without "their" music, when the major labels should be able to make money by selling you one?)
This is how adherents to current IP law think. This is not reasonable. This is not forward-thinking. This is not socially redeeming in any way. This is stupid. It is reductio ad absurdum, except that it is being taken seriously. On the contrary, it merits nothing but ridicule.
That's why you're seeing so little regard for, "traditional IP laws and rights." It's because they don't merit respect. The era of ubiquitous and zero-cost manufacturing, as heralded by the computer, makes them irrelevant and obsolete.
Please note extremely carefully: I am not saying artisans and inventors should not be justly compensated for their creative works. But the "traditional" laws we have in place for doing this no longer have any realistic bearing on the real world, since the machines themselves defy the fundamental assumptions made by the law. The whole system needs to be scrapped and re-designed anew.
Schwab
Semi-useless decision (Score:3, Insightful)
Certainly, this is a victory for the open source crowd. The idea that source code is speech is so natural to us as to be common sense. Having that view upheld by the court is indeed a triumph of law.
However, I'm afraid I have to put a damper on the fun. The court ruled that source code is speech; compiled executables received no such protection. As such, posession of the DeCSS source code is legal, but use or posession of binaries, or even compilation of source (which would produce a binary) is not legal. "You can have it, but you can't use it."
As a practical matter ( WARNING! I am not a lawyer. This is not legal advice! If you try this don't say I told you it was OK! If ever there was a time for the BLINK tag, it's this disclaimer...), since you can posess the source code, there is nothing to realistically stop you from using the binaries. In theory, when the system works right, you cannot be searched without a warrant, which requires probable cause to obtain. If you give the feds probable cause, you deserve what you get, but if you keep your mouth shut and use the software quitely in your home, nobody should be able to get a warrant, and you should not be subject to prosecution (under the rule of "it's only illegal if you get caught"). This would also rule out binary distribution--draws attention to yourself. ( Another BLINK disclaimer: I am not advocating breaking any law. I am merely offering my uninformed interpretation of the legal system. ) The DMCA has not been overturned here, it has just been found not to apply to source code. And for those who are thinking what I'm thinking, interpreted languages aren't a back door. You may be able to posess the Perl version of DeCSS, which is executed from source (for all practical purposes), but execution would be circumvention, and the DMCA says "no" to that.
Good points from the case:
Bad points:
Brief summary, in my own words: you can have it, but you can't use it.