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2600 Appeal Rejected 273

Posted by michael
from the down-but-not-out dept.
blankmange writes "Wired is reporting that 2600's appeal has been rejected by a federal appeals court. "The Second Circuit Court of Appeals said in a one-line ruling that it was not going to revisit an earlier decision in which 2600 was found to be unlawfully distributing a DVD-descrambling utility. In January 2000, eight movie studios sued the legendary hacker quarterly for posting the DeCSS.exe utility, which decodes DVDs and allows them to be viewed on a Linux computer." The magazine now has 90 days to file a Supreme Court appeal." The Appeals court did not have to take the case, and they didn't. 2600 can appeal to the Supreme Court, but they don't have to take the case either - it's looking more and more as though Kaplan's ruling will stand.
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2600 Appeal Rejected

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  • winux? (Score:3, Funny)

    by Ruliz Galaxor (568498) on Friday May 17, 2002 @11:50PM (#3541319)
    "the DeCSS.exe utility, which decodes DVDs and allows them to be viewed on a Linux computer."

    Now what? an .exe utility which is made for running under _windows_ and then I can view it on a _linux_ computer?
    blargh... when you think you're finally done with the windoze thing, they come up with an .exe
    :)
    • Like it would have made any difference if it was an ELF format? Yeah, DeCSS, the descr... uh, I mean, Linux DVD playing decoder software. =)
    • Now what? an .exe utility which is made for running under _windows_ and then I can view it on a _linux_ computer?

      I think you mean execute.
  • From the article

    This is hardly the first time that Hollywood and other DMCA proponents have won in court. A federal judge in New Jersey tossed out a case brought by Princeton University computer scientist Ed Felten, who claimed legal threats made by the recording industry unconstitutionally chilled his right to free speech
    Is that something that Hollywood would be celebrating - this smells bad - real bad.
  • by checkitout (546879) on Friday May 17, 2002 @11:52PM (#3541329)
    I think a large part of the reason it wasn't allowed for appeal was the great number of protests and courtroom hijinx 2600 brought with them. Its like being the class clown, teachers aren't going to give many favors and would rather send you to the principals office than deal with you directly.
    • Had 2600 been prim and proper they wouldn't of won anymore then they did in reality. I don't think they are owed any "favors" as you put it. I think they are owed their right to appeal a unfair ruling made by a judge who was either corrupt or had no idea what he was talking about. I would hope that court rulings aren't based on the conduct of the defendant in court or the "favors" they are owed.
    • I think a large part of the reason it wasn't allowed for appeal was the great number of protests and courtroom hijinx 2600 brought with them. Its like being the class clown, teachers aren't going to give many favors and would rather send you to the principals office than deal with you directly.


      If this is the reason, then the judge should be put in jail. Judges are supposed to be impartial rulers of the law. If they are not doing their job, they should be impeached. If they are discriminating against groups of people (in this case, political activists), they should be put in jail for something (I'm sure there's a law regarding this with specific penalties and everything).
    • by Seth Finkelstein (90154) on Saturday May 18, 2002 @12:56AM (#3541528) Homepage Journal
      The "image" battle was a problem way before the appeal level. In the original ruling, the court said [harvard.edu]:

      In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.

      Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.

      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.

      Judge Kaplan wasn't exactly shy about his views, no sirreee bob ...

      Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

      • by Alsee (515537) on Saturday May 18, 2002 @03:32AM (#3541819) Homepage
        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 response to the dopey judge:

        Now we are all elitist too?

        We believe that information should be available without charge to any dooling idiot who bought it.

        I'll have to add that to the list - We're all elitist greedy selfish thieves with ulterior motives. Expecially those evil librarians [doc.gov], evil journalists [eff.org], and evil scientists [eff.org].

        -
      • Funny.... (Score:4, Funny)

        by wowbagger (69688) on Saturday May 18, 2002 @08:56AM (#3542254) Homepage Journal
        Funny, in one court case the defendant repeatedly played games with the court, pissed the judge off, submitted faked evidence, and when the judge expressed his opinion, he was removed from the case and a new judge assigned.

        In another court case, the defendand repeatedly played games with the court, pissed the judge off, and didn't submit faked evidence, and when the judge expressed his opinion, he was upheld on appeal.

        Funny, that.
      • "...

        Mine is a world that begins with school... I'm smarter than most of the other kids, this crap they teach us bores me...

        Damn underachiever. They're all alike.

        I'm in junior high or high school. I've listened to teachers explain for the fifteenth time how to reduce a fraction. I understand it. "No, Ms. Smith, I didn't show my work. I did it in my head..."

        Damn kid. Probably copied it. They're all alike.

        I made a discovery today. I found a computer. Wait a second, this is cool. It does what I want it to. If it makes a mistake, it's because I screwed it up. Not because it doesn't like me...
        Or feels threatened by me...
        Or thinks I'm a smart ass...
        Or doesn't like teaching and shouldn't be here...

        Damn kid. All he does is play games. They're all alike.

        And then it happened... a door opened to a world... rushing through the phone line like heroin through an addict's veins, an electronic pulse is sent out, a refuge from the day-to-day incompetencies is sought... a board is found. "This is it... this is where I belong..."

        I know everyone here... even if I've never met them, never talked to them, may never hear from them again... I know you all...

        Damn kid. Tying up the phone line again. They're all alike...

        You bet your ass we're all alike... we've been spoon-fed baby food at school when we hungered for steak... the bits of meat that you did let slip through were pre-chewed and tasteless. We've been dominated by sadists, or ignored by the apathetic. The few that had something to teach found us willing pupils, but those few are like drops of water in the desert.

        This is our world now... the world of the electron and the switch, the beauty of the baud. We make use of a service already existing without paying for what could be dirt-cheap if it wasn't run by profiteering gluttons, and you call us criminals.
        We explore... and you call us criminals.
        We seek after knowledge... and you call us criminals.
        We exist without skin color, without nationality, without
        religious bias... and you call us criminals.
        You build atomic bombs, you wage wars, you murder, cheat, and lie to us and try to make us believe it's for our own good, yet we're the criminals.

        Yes, I am a criminal. My crime is that of curiosity. My crime is that of judging people by what they say and think, not what they look like. My crime is that of outsmarting you, something that you will never forgive me for.

        I am a hacker, and this is my manifesto. You may stop this individual, but you can't stop us all... after all, we're all alike."

        ~will

    • Want to know why they lost? I think this link pretty well explains it all:


      The DMCA Is the Toast of D.C. [wired.com]


      NOTICE the older-than-time, uppercrust DC politicians who are close to retirement, and need to pad their pockets with as much industry money as possible ("we'll pass ANYTHING for a price!").

      SEE the big copyright holders wining and dining the aforementioned old politicians. Booze 'em up, then get them on board when they're tipsy.

      EXPERIENCE the complete lack of anyone who has any opposing viewpoints.

      Now, just for the record, I DO approve of copyright laws. That said, there NEEDS to be a fair use policy that allows users/owners to space/timeshift their information. Move it from DVD to HD to portable player without any restrictions other than making illegal copies.

      The length of copyright terms needs to come WAY down if the studios/publishers want the kinds of control they are asking for.

      Sure, make it an iron-clad copyright to protect all content without any space/timeshifting rights if you want - but if you, as a studio, DO want these rights, your copyright term drops to an absolute MAXIMUM of 5 years, after which it's opened up wide for all to see/shift/transfer as people see fit..
    • k appeal, everyone there was respectful of the court, save the time the lawyer for the government, when pressed admitted that DeCSS posed not actual harm, but "well, threat of actual harm."

      The entire courtroom laughed, judges included.
  • Lawyers (Score:2, Funny)

    by Banjonardo (98327)
    Ok, lawyers, any chance?

    For the Supreme Court, I mean?

    • Going to the Supreme Court could be far worse than not going. What if they also rule against 2600? That's something that'd be hard to over-rule.
      • That's true; but the publicity might sure help.

        I don't know.... better than to leave it as it is, I suppose. If they're gonna lose, might as well lose with style.

  • OK, fine, 2600 is possibly going to go down. This doesn't mean we can't see DVD's on linux boxen.

    Admittedly, it's sad to see such a prestigious (!) publication get the back end of a firebomb....

    • Hrmm...firebombs. MPAA. Judge Kaplan's house...

      ...no, I will not get nasty ideas. I will not get nasty ideas. I will not get nasty ideas...

      Well, maybe just Jack Valenti.
      • Re:No DeCSS? (Score:2, Flamebait)

        by BreakWindows (442819)
        ok kids, just for review, THIS is legal to write:

        " Hrmm...firebombs. MPAA. Judge Kaplan's house... "

        And THIS is not:

        #!/usr/bin/perl
        s''$/=\2048;while(<>){G=29;R=14 2;if((@a=unqT ="C*",_)[20]&48){D=89;_=unqb24,qT,@
        b=map{ord qB8,unqb8,qT,_^$a[--D]}@INC;s/...$/1$&/;Q=unqV , b25,_;H=73;O=$b[4]<<9
        |256|$b[3];Q=Q>>8^(P=(E=255 )&(Q>>1 2^Q>>4^Q/8^Q))<<17,O=O>>8^(E&amp ; F=(S=O>>14&7^O)
        ^S*8^S<<6))<<9,_=(map{U=_%16orE^= R^=11 0&(S=(unqT,"\xb\ntd\xbz\x14d")[_/16%8]);E
        ^=(72,@ z=(64,72,G^=12*(U-2?0:S&17)),H^=_%64?12 : ,@z)[_%8]}(16..271))[_]^((D>>=8
        )+=P+(~F&E))for@a [128..$#a]}print+qT,@a}';s/[D -HO-U_]/\$$&/g;s/q/pack+/g;eval

        Really puts things in perspective, huh?
  • T-Shirts (Score:4, Informative)

    by Penguinoflight (517245) on Saturday May 18, 2002 @12:03AM (#3541366) Homepage Journal
    ThinkGeek will sell you a decss t-shirt, and it's not tiny print either. I don't want to be trollish, but it's high time we got some competent judges, or at least another section of judges for tech cases.
    • Re:T-Shirts (Score:2, Insightful)

      by packeteer (566398)
      that would be great as long as they arent "industry appointed official"... basiacally MPAA lapdogs... we cant have our own enemies choosing the judge...
    • Hey! Let's all encourage 2600 to appeal to the Supreme Court, send 'em money even, and then let's ALL go to the Supreme Court on the day the Supreme Court will decide to hear the case or not, all of us wearing DeCSS T-Shirts, waving American flags and displaying signs talking about free speech!

      Nah...the National Guard would probably shoot us. :)
      • Nah...the National Guard would probably shoot us. :)

        what are you saying here? that the army national guard would come to the supreme court to monitor a protest? the DC police are well equipped to handle protests there, as they usually do, even when the rambunctions pro/anti-abortion protesters face off.

        if you're making a reference to kent state, which i am certain you are doing, remember that, while the national guard was in error for firing on unarmed protestors, they did so because they felt threatened by the increasingly-violent mob. it was a grievous error in following the rules of engagement, not a willful attempt by the government to stanch debate.

        jon
  • If the supreme court refuses to hear the case do we formaly rebel or something then?

    I mean what ARE the options left after both the legislative and the judicial branch have f*cked you in the ass?

    Granted it wouldn't be MUCH of a rebelion (well, one way or the other. Not like Nerds / Geeks can agree on anything, getting us all organized would be hell, everybody would start fighting over minor ass stuff), but if we ever did get organized we would rule the world.

    (in about ten seconds, heh.)

    Somebody else can comment on the irony of the highest potential power being held by people who are unable to get together to use it. ^_^
    • Well, yes, civil disobediance is the next step. The problem is that now is not the time. There isn't enough consumer interest in what's going on.

      The public is still addicted to the media and buy swallow whatever it feeds them. As long as they get what they think they want it will keep on keepin' on. While it does indeed hurt the public, they haven't felt it yet. Before they allow people to feel the pain of having their rights ripped from their hearts, they have to tie us all down so we can't fight back.

      Awareness comes first and unfortunately, we have to wait until something BIG happens. Something big like...oh, say another Columbine-style shooting where the people are apparently driven mad by our freedoms being taken from us. Okay, we will need at least three of those events before people start listening... the first one is "some nut" the next one is a "copy cat" but the third is a "movement."
      • The fuck? No it isn't.

        The next step is to elect a new legislature.

        And I really don't see how you get from civil disobedience to Columbine. Did you skip out on civics class for crack hits?

        I swear, the shit that comes out of geeks' mouths when they start talking politics is appalling.

        • by erroneus (253617) on Saturday May 18, 2002 @07:52AM (#3542167) Homepage
          Some people see the fight against the DMCA as a fight to let us copy video and audio in ways that we want. In some respects that's true, but for some it's a lot more.

          The DMCA is offensive because of the submersed way it was passed. Recall the stories about the method applied. The voting was held in a dubious way at a dubious time if I recall correctly. This is law that never had due process. While there was a little bit of mention about it prior to it being passed into law, the DMCA was passed very quickly and very quietly. There are enough people pissed off about that to disallow that tactic from being used again for a while. We should be fighting against that tactic but you have to get legislators prepared to fight that for you... there is no other way.

          The DMCA was law written in the interest of one group only. The public's interest wasn't even a little-bit considered. It was already illegal to copy copyrighted works. We didn't need new law to make it 'more' illegal. It was written so that it could be a weapon against due process against the people who are less capable of affording good legal defense. In effect, it gave the entertainment interests "first strike nuclear capability" against anyone they want without good due process involved. The DMCA isn't about making anything 'more' illegal, it's a weapon. Since when should law be a weapon?

          Finally, since this is a weapon in the interests of the entertainment media, getting the public's attention will be pretty much impossible without major events. Most people still don't know what Macrovision is and just think there's something wrong with their VCR. (Admittedly, I didn't know what it was either until I bought my first DVD player. Since I have an inexpensive TV and an inexpensive VCR, the only obvious way to hook my DVD player up was through my VCR's inputs... but for some mysterious reason it was all scrambled... most people usually stop there, but I'm a geek -- it's still a rare breed -- which is where my story kinda begins.)

          The DMCA and future 'technology law' seek to restrict knowledge and the ability to tweak, tinker and research. This takes such knowledge out of the hands of the hobbyist almost entirely. The ability for me to hack on things on my kitchen table... to learn about the world on any level of my choosing is a very fundamental restriction. The restriction of information and knowledge... just the thought of it frightens me. Speech is just the way knowledge is conveyed. There are things that 'they don't want you to know or even know about!' That's a big problem.

          I find it disturbing when there is software installed on my machine doing something I don't want it to do and didn't know was there. That's usually called a virus or a trojan. Now it's also called "spyware" and "ad engines." I'm not alone in that. I find it disturbing when law is passed without public notice, attention or heed... our legislators just looked the other way allowing the first of many up-an-coming measures to begin. Again, disturbing.

          And finally, again as the DMCA and similar laws being attemptd are in the interest of the parties controlling the media, it's not likely that any small events will get public attention. If you need a visual, imagine a cute little cartoon boa contrictor surrounding us. It's cute, funny, interesting, colorful... but that's always the approach of this predator. And when we can't get out, they constrict until we can't breathe.

          Changes in the way our government runs is no accident. It was predicted and it is happening now. Public opinion is that we do not own our country -- our government does -- and anything happening that we don't like; there's nothing we can do about it.

          I resent being called a 'troll.' The point I'm making is that the public's attention isn't being raised and that's no accident. The 9-11 event was not just a 'terrorist act.' It was a very significant "PR" move to get attention. There is a problem with what's going on over there in those distant lands. People never really knew about it before then. Sometimes, that's just what it takes to get their attention. People still don't know why it happened but more people know now than did before. Likewise, people still don't know the value of what's going on here. Right now, the DMCA is only bothering a 'few' individuals and we have 'Larry Flynt' [2600] fighting our battles for us. In the same way people had a difficult time getting behind 'porn' people are having some problem getting behind 'hackers.'

          Our Reality is our perception and since the media is our perception, they control our reality.
          • While there was a little bit of mention about it prior to it being passed into law, the DMCA was passed very quickly and very quietly. There are enough people pissed off about that to disallow that tactic from being used again for a while. We should be fighting against that tactic but you have to get legislators prepared to fight that for you... there is no other way.


            Ahem...ever heard of something called the "Patriot Act"? Its time of passage (late September 2001) was as dubious as any law enacted by the U.S. in at least 50 years and has the potential to erode Americans' rights at a rate the DMCA could not in the latter law's wildest dreams.

            Right now there are a lot of people urging their legislators to fight against this crap, but most in Congress, especially the more junior members, are scared shitless to break from their party line. Why? Because if they do, they'll be embarassed (if anyone spoke out against a bill called the "Patriot Act", he or she would at best become a laughing stock; at worst be branded as a terrorist) and possibly have their political balls chopped off. Right now, the power in Congress is concentrated into the hands of a very small group of senior members. This power imbalance is especially evident in the Senate, where unless 60 colleagues can stop him or her, a determined Senator can block any bill from being acted upon by means of filibuster. Piss off one of these elite members, and forget about ever getting your pet legislation up for a vote.

            In the mid 1990's, Mass. Governor Weld was nominated by President Clinton for the Mexican ambassadorship. Weld and Clinton both knew that getting Weld confirmed would be a tough battle with the Senate; Weld in fact resigned as governor to pursue this federal position. Little did they know that the Senate would never get the chance to confirm or reject him. Jesse Helms, the chair of the Foreign Affairs committee in the Senate, prevented the nomination from ever getting to a vote because of a personal problem he had with Weld. Apparently, he pulled a parliamentary maneuver that could not be overruled by the rest of the Sentate, unlike a filibuster. WTF? I thought the Constitution allowed the President to appoint people to executive branch positions with the "advice and consent of the Senate", not with the "advice and consent of the Senate, provided that no prominent members of the Senate object to giving to or witholding from the President said consent." I'm sorry, I think that in all such situtations, the President is entitled to a "Yes" or "No" response from the whole Senate. Period. A "we're not allowed to decide because Daddy Helms won't let us" response should be unconstitutional.

            I gave this nomination example since I'm more familiar with it than most other failed legislative exploits (it was a big story in the Boston media at the time), but I know it happens all the time with Congress members' legislation too. I understand that there are only a finite number of bills that can be considered during a two-year term and that of this number, some of them absolutely must be debated (e.g. the budget), but the way the Speaker of the House, the Senate President, and select heads of committees in each house have control over the legislature's agenda more closely resembles a dictatorship than a democracy. I wonder how many times a rookie Senator from a small state has successfully managed to keep a pork bill sponsored by Senator Hollings, Hatch, Helms, or Kennedy off the agenda in recent years? Not many. There always seems to be enough time to debate and vote on those bills for some reason. But then time mysteriously expires when Sen. Rookie introduces his bill...

            Right now, members outside of the elite will get run out of office before they can substantially affect the way things are done in Congress. Unfortunately I don't see a way this will change any time soon. Changing the way Congress works would require the work of 300 to 400 members; that is a substantial majority of each house. Considering that this majority will in all likelihood consist of a relatively equal mix of Republicans and Democrats (and possibly a few of other or no party affiliation), there will be a multitude of reforms proposed and debated. Unfortunately, this divided group will end up implmenting very few if any of these reforms, thus allowing the elite members to retain their stranglehold over the legislature's agenda.

            Also, the belief that every voter has the power to change this is oversimplified at best. Over 98% of the U.S. population will have absolutely no say over whether Senator Hollings will get re-elected in South Carolina. 99 percent will not get to voice their opinion of Orin Hatch the next time his term comes up. Considering at most a few dozen lawmakers are in this elite group that sets each term's legislative agenda, I would venture to guess that over 90% of eligible voters will have no direct say over whether the present state of affairs changes on Capitol Hill.

            The best most Americans can do is vote for outsiders (i.e. against the incumbents) and hope that a critical mass of fresh blood can get together and begin to buck the oligarchy's hold over the U.S. This will take either a miracle or at least several decades to pull off.

            Until then, I really don't see how the special interests (including the media) are going to stop having an inordinate amount of influence over U.S. policy. Changing this situation is something that's going to require at least a nationwide (some international pressure may even be necessary) grassroots effort. In other words, try as we might, don't expect any meaningful results for many years from your campaigns. Hell, it took 90 years and half a million wartime casualties to ostensibly eliminate slavery from this country. Many would argue that de facto slavery continued in the U.S. for nearly a century after the Civil War. If that kind of effort is required to defeat an blatant injustice like slavery, it's going to require a lot more than a "FP? I love CowboyNeal" post on Slashdot to eliminate the threats created by the likes of the DMCA and CBPTDA. I think these laws will be overturned or at least their effects will be mitigated eventually. However, "eventually" is a very open-ended term.
            • I keep wondering, though, if an organized political movement couldn't do something about Michael Eisner. See, he's the real problem. He's the leader of the content lobby and the head of the powerful Disney corporation. If he, himself, were to crash and it was clearly seen that it was because he angered the tech lobby, we could bypass Congress altogether.

              Maybe those of us who are in the tech lobby should stop worrying about those old bastards who run our world and start thinking about the people who are prompting this insane legislation. Those people head corporations, they don't hold Senate seats.

              What if everyone who hated this kind of stuff bought a few shares of Disney stock, and then used that stock to run the company into the ground? (I imagine it could be done if we owned enough of it.)

              Robert A. Heinlein wrote in the novel Friday, "How do you fight IBM?" Maybe it is time to take that question seriously.

              Making legal war against a corporation in the realm of economics? Is it possible?

              I probably just have too much imagination. However, I remember one of the content lobbies talking heads saying something like, "It's like a religion, they won't let us tell them what to put in their computers." Well, it really is my religion, a belief in Progress. I'd like to think I'm not the only one.

      • No, the next step is BOYCOTT STAR WARS!!! Those people who go out and see these movies and rent or buy DVDs or tapes and buy CDs or tapes are the ones paying to take 2600 to court. If you don't like what they're doing, STOP BUYING THEIR STUFF AND INSTEAD GIVE THE MONEY TO GROUPS THAT OPPOSE THEM!!!

        If you're on this page bitching about the MPAA AND you saw Star Wars or you're planning to see it, then you just don't get it.

        The next step is not get a new legislature, and it's not civil disobedience or breaking the law, and it's not to go to the media whining about how mean the media companies are being and expecting the media companies to care. (I hope you can see the irony in that last statement.)

        The next step is:

        STOP BUYING STUFF FROM COMPANIES THAT TREAT YOU LIKE SHIT!

        Get that through your heads. Until you're willing to forego seeing/hearing $BrightShinyThing every time a new interesting thing gets made by the media companies, you're still helping them. All they care about is money. The only way to stop them is to take away their money, and the only way to do that is to decide for yourself that you will no longer give them any money. If your freedom is important, you should be willing to suffer a little by not helping the people who want to take away the freedom. You can do it. It sucks, but you can go through life without seeing movies in the theater and without buying CDs.

        All of the other things, from political actions to media campaigns (snicker) to lawsuits won't matter if you keep buying their stuff. Stop giving them money. Tell everyone you know to stop giving them money.
        • We live in a capitalist democracy. Vote with your wallet. The parent post is so on point that it is scary. There is nothing else worth saying on this issue, really. If you are not part of the solution, you are part of the problem.

          Some people are apathetic, and say "well, hollywood movies make billions of dollars a year, what does my $7.50 matter". If everyone who shared the view that the DMCA was a front put on by evil corporations boycotted said corps, they would notice.

          On top of all that, have some self respect. Are you going to pay the price of a movie ticket every time the next "blockbuster" comes out? Do you really want to pay for recycled canned music? Of course you don't. But how many people do?

          Want to see a real sham: www.starwarstwo.com
    • by GMontag (42283)
      The first rule of Operation Total Chaos is that we do not talk about Operation Total Chaos.

      SO SHUT UP!
    • If the supreme court refuses to hear the case do we formaly rebel or something then?

      No, you look for a test case that's better suited for establishing that computer code is free speech. It's better that they don't hear this case at all, than hear it and decide that code isn't speech.

      Down the road, I suppose a computer language that's indistinguishable from English would probably be the best answer.
  • DMCA here to stay? (Score:3, Insightful)

    by numbuscus (466708) on Saturday May 18, 2002 @12:06AM (#3541379)
    While I believe there are a few more cases pending that seek to gut it, I think we may have to get used to living with the DMCA. It's unfortunate, but this is what happens when you live in a society that is ruled by the media industry. With only a few companies controlling 90% of the TV stations and two or three firms taking control of the radio, it's going to take some serious lobbying to stop these types of bills passing. The Internet is the only thing standing between the media giants and their utter control of free speech. If something isn't done to curb this, we may find ourselves in a society not run by a single 'big-brother' State, but instead run by a few giant media groups. Not that they couldn't - at that point - purchase the State, with all of the media at there disposal, they could do anything. And most people would go along with it, because they saw it on TV. I can just here my parents and grandparents now - "Well, so-and-so on channel 2 said it was a good idea. And then I heard the same on channel 7 - and then the newspaper endorsed the idea. So, it must be the way to go..."

    • Well, when you consider the party that Rosen and Valenti threw for their favorite bought and paid for politicans yesterday [wired.com], things certainly don't look promising, at least in the short-term.

      I wonder why they didn't invite Boucher to the festivities? Frankly until there are more fair-use advocates like him in congress i will be very worried
    • Ok, what the hell just happened? After posting the previous message, I went back to check out the story about Trent Lott killing a vote in committee today. But the posting was GONE. I then went 'Back' and refreshed, adn it was there? But the URL is http://yro.slashdot.org/

      Am I just getting paranoid or is Slashdot being censored? Please, someone explain.
  • hack it. (Score:3, Funny)

    by DarkHelmet (120004) <mark@seventhcBAL ... net minus author> on Saturday May 18, 2002 @12:12AM (#3541400) Homepage
    The appeal has been denied to 2600...

    No wait... the website has been changed...

    The ruling has been reversed? Hmmm. I wonder how that could have been done?

  • by DragonPup (302885) on Saturday May 18, 2002 @12:21AM (#3541417)
    Apparently descrambling DVD is encyption As bad as sabotaging airplanes to crash [wired.com]. Gives you a idea just how much of a clue these judges have to what these programs do.(Granted, this was pre-9/11, but still)

    -Henry
    • People say you grow cynical as you grow older, I think you just lived long enough to see enough bullshit, and understand its bullshit.

      1. War on drugs.
      (96 thousand people are in jail for only using drugs, Private companies earning money off drug seizures. Ads saying Drugs promote terrorism)
      2. Campaign reform.
      (Bush just had a nice dinner that made 30 million dollars for the republicans, You wont see the Libertarian, Green or Natural parties raise this kind of money)
      3. Personal Rights.
      (The right to die, The right to sell your body, The right to marry same sex, im sure there are others.)
      4. Men's rights
      (Men are held at a higher standards for raising children, child support, alimony, divorce settlements are in favor of women)
      5. Racial Issues in the workplace
      (Businesses around the US are still showing race issues, Walmart, Dennys, etc..)
      6. Property rights
      (You don't own that dvd, its encrypted!, everything is licensed, EULA is a forced contract)
      7. Religion in Government
      (In the USA we have the have the separation of church and state. Religion seems to be the driving force for most political issues.)
      8. American Values
      (Your either with US or against US, The moral majority doesn't have time for any degree of separation of values.)
      9. Tax reform
      (The federal tax burden is 20.7 percent of gross domestic product. The surplus tax money does not belong to politicians.)
      10. Voters Rights
      (Recount of the Florida showed that if the entire state did a recount, Gore won the state. Jed Bush (Governor of Florida) stepped up and was against a recount of the entire state. The state started to burn all voter records at the request of Jed Bush.)

      The list goes on, you can loose count of all the special interest groups in the USA.. Judges that are elected, backed by corporations. Kick backs, pay off, political pork, honesty is bought and sold.

      Well, enough of this shit, Im off to listen to some Mp3's, and surf porn. While its still legal.

      -Brook
      -
      Americans detest all lies except lies spoken in public or printed lies. - Ed Howe

  • by Anonymous Coward on Saturday May 18, 2002 @12:22AM (#3541422)
    He correctly pointed out that disputes over the limits of fair use and copyright lie in Congress's jurisdiction, no the courts. The courts job is to enforce the law and interpret it to a given set of facts. The whole First Amendment argument was incredibly weak anyway. Arguing that DeCSS actually made some sort of statement that was political rather then being a tool used by others too make a political statement was akin to the anarchist arguing that bomb making was protected because his political opinions were. If DMCA tromps on your fair use rights then get your butts out on the campaign circuit, contribute time, money, and sweat to political candidates who will promise to change it. Support those that back your view and fight those that don't. This is an election year kiddies, remember? Every single House member and a third of the senate. Don't give me that blatther about Hollywood ownes them, yada, yada, yada. Individuals vote, in election places, on election day, not dollar, not companies, individuals. So start cranking ou broadsides explaining this issue to the voters, start going door to door, start working campaigns and making contributions and get involved. I've been a political activist for eight years, making connections and getting to know folks, and I tell you that most politicians are desperate for grass roots activists, Go to your local political club, introduce yourself, let the local politician know your computer aware and he may come to you for an opinion on these matters. But don't be percieved as an anarchist. Wash your hair and face, dress nice, dump the rightious indignation and be polite considerate and non dictitorial and give of your own time and money to help them and they will listen. In the end it's the Congress that created this mess and it's in Congress it will need to get fixed. So rant here, but get active in the real world. Or prepare to keep getting run over!
  • by joneshenry (9497) on Saturday May 18, 2002 @12:29AM (#3541441)
    This case is being lost because the movement headed by the EFF simply does not have the incentive to win it. The American judicial system did not become conservative just yesterday, it has always been so. Just in fairly recent American history the African Americans after centuries of reverses in the legal system were able to persuade the Supreme Court to grant relief. In this case the African Americans simply were interested in winning above all. So they did everything they could to put forward good upstanding representatives such as Rosa Parks and Dr. Martin Luther King, Jr. to represent the face of the movement.

    In contrast let's face it, neither 2600 nor EFF are threatened with nonexistence should they lose this case. In fact they are benefitting. Every time the EFF loses a case the movement argues that the solution is to give them more money, this despite a rather suspicious history of the EFF actually being on the wrong side such as the first head of ICAAN being former head of the EFF Esther Dyson. I doubt that 2600 is hurting either from having their name prominently displayed on the Internet news outlets every few weeks.

    In this era of dotcom meltdown and competition is it so unlikely that without this controversy 2600 would be threatened with going out of business? What information exactly does 2600 have that's exclusive to them or is even that interesting anymore?

    In contrast to the naysayers I think it's pretty clear that the Supreme Court takes seriously the First Amendment, and that is the ONLY reason 2600 even has a chance of getting them to review the case. The Supreme Court has for example repeatedly struck down the attempts by the Federal Government to regulate obscenity on the Internet. The Supreme Court is serious about its duties, too bad 2600 is not.
    • by rusty0101 (565565) on Saturday May 18, 2002 @03:10AM (#3541783) Homepage Journal
      In contrast let's face it, neither 2600 nor EFF are threatened with nonexistence should they lose this case.

      While this is not strictly about whether or not 2600, or EFF's existance is threatened, there is a prospective problem that has been raised by the case and the judgement.

      The original story that 2600 carried was about how the author of a piece of software was being hassled by the legal system in his country. As the author had made public the software he had created, 2600 collected copies of the software and source code, and made them available on their website. Subsequently 2600 was enjoined through the courts by the MPAA to pull the software and source code from their web site. At that time 2600 published links to other web sites where the software was posted. These links were provided by readers of 2600 for the most part. In some cases the links were directly to the software, in other cases the links were to web pages where the software could be found. The appeal that has been lost at this time is 2600's appeal to be able to continue the practice of linking to other people's web sites with respect to the DeCSS software. After the Kaplan ruling 2600 posted a copy of the ruling, and advised readers that while they were not able to provide links to sites hosting DeCSS information, any interested parties could easily call find hundreds of such sites by typing DeCSS into the "GoTO" search engine, which is hosted by Disney, one of the petitioners in the case. So the judgement can be interpreted to read that the petitioners can tell you where to find this software, but the defendent is not allowed the same privledge.

      I am aware that a lot of people are commenting that the DeCSS.exe program is a Windows program, so obviously it has nothing to do with Linux. In any effort to put together a tool for Linux, the author of parts of that tool, or package, needs to verify that the algorythims work. At the time the developer of DeCSS came up with the code that was ready to be tested, there was no way to read a DVD disk in Linux. (I may be wrong here, however this has been my interpretation of the arguments presented.) At the same time, DVD disks could be accessed in the Windows environment. The author did the logical thing, he compiled his algorythems into a Windows executable, with the necessary front end, and tested. It is this software that has been made available, and is found in the DeCSS.exe package.

      On top of that, I have a hard time believing that the program would not run under Wine without any re-compiling, though I have not tested it.

      The potential big problem this presents for the press is that Kaplan has set the precedent that if some media conglomerant decides that a story is detrimental to their situation, they can petition the courts to tell the periodical hosting that story how to present the relevant parts of the story. Theoretically if someone on /. finds out that there is a picture of one of the heads of the MPAA in a comprimizing situation, the MPAA can petition the courts to have /. rephrase the story so that it could read there is a picture of Mr. V in some compromising situation out on the internet now. Go to Google and serach for "mr. v compromising". and point back to the 2600 case as the precedent, and it will have been upheald by the Supreme Court.

      Then again, IANAL, I could be wrong.

      -Rusty
      • I'm with you until the last paragraph, where you say
        Theoretically if someone on /. finds out that there is a picture of one of the heads of the MPAA in a comprimizing situation, the MPAA can petition the courts to have /. rephrase the story so that it could read there is a picture of Mr. V in some compromising situation out on the internet now.

        So far as I can tell... the foundation for the MPAA's case is that DeCSS was a 'tool' for people who stole their copyrighted works - that was why posting, and then linking to, DeCSS was interpreted as a crime in the first place. The defence was based on at least three central points. First, that DeCSS was legitimate to be in possession of, as it was useful as a tool to use content already paid for; moreso, as it was the only way to access such content on particular players (Linux DVD drives). Second, that computer source code is protected speech (I'm not sure if they only argued for symbolic code (C, C++, Java; assembler for your chip of choice) or bianary code (1100, etc.)) as it was a form of written communication, albeit encoded. Thirdly, linking to other websites from your own site does not just imply that you condone or encourage what the linked-to site has in terms of content.

        The prosecution would somehow have to argue that the comprimising picture was illegal. Seeing as tabloids flourish (with many a unwanted photo) and there is nothing inherently useful about having a photograph in computer code except for the ease of distribution, the example may be a bit pessimistic. I may be wrong; some places have privacy laws that might cover such distribution. Either way, the disputed data must be illegal in some way. Or so I read it.

        On the other hand, IANAL either.

        P.S.DeCSS [is2.dal.ca]. The US may be the land of the brave, but Canada is the home of the free :)

  • So the software that allows to make copies of DVDs "[Download.com]" [com.com] is legal. I do not understand, if I want to COPY movies for myown use, its alright by the MPAA, but as soon as i want to WATCH them without payint the 'MPAA tax', i get sued.

    This is frigthening
  • This hardly just ties into the DMCA, and the music and movies industry. It ties into a far larger picture, that of the decaying public trust in the gov't, and worse yet, the courts.

    As Americans, we've liked to think of the courts as a neutral element in our politics, one that cannot be so easily swayed by money grubbers and the bands of lawyers and lobbyists they employ. I still remember how commentators noted that perhaps the most serious damage done in the Bush/Gore election was that a large segment of the population quietly lost faith in the judiciary's ability to stay apolitical--that they too can, and will, play political football.

    Here, in light of the DMCA, we have seen how campaign contributions have been used to push a bill thru Congress, ultimately affecting a ruling in court, with the aid of their own high-priced lawyers.

    So why should you give a damn? Because perfectly legitimate actions are being illegalized! When this happens, people simple don't give a shit about the law. And when people start with that attitude, the law loses authority, and the government's claim to righteousness is eroded.

    In the end, everyday hackers like you and me will simply not shit about what's "right." Because we feel that we've been wronged, everything is now fair game. And believe me, vigilante rule, all of this every-man-for-himself mentality that might spew forth--it scares the shit out of me, cuz we might not win.

    • cuz we might not win.

      We will.

      Collectively, we control the Internet, we control every company's data. We control their payroll, their accounting, their ordering, their web site, in some cases, their phones.

      Geeks have the power to stop the world in it's tracks if we need to. We will prevail, because we can hold the world hostage with the technology that it depends on.

      The government really doesn't want to drive us to civil disobediance, because we can be incredibly effective at it if we have to.
  • by apc (193970) on Saturday May 18, 2002 @12:48AM (#3541501)
    won't grant certiorari (the appeal). Until the issue comes up again in another circuit, they won't see any reason to rule on it. The Supreme Court takes an incredibly small (about 100) number of cases a year, from the thousands and thousands which make it up to the (13) Circuit Courts of Appeals and (50+DC, PR, etc.) State Supreme Courts. Unless two courts in different parts of the country are in conflict, or the law is clear enough to rule on it now, it just won't be a priority for them-- and it takes 4 justices to decide to hear a case (out of 9).

    In a sense, I'm not sure that if I were the EFF that I'd want this to be the case in front of the Supreme Court. Don't get me wrong, I've met Emmanuel Goldstein a couple of times and he's a great guy, but to the non-geek straight world he's a Bad Criminal Hacker, not a journalist. You generally would like to have a case with a more sympathetic client before taking it up to the Supreme Court, which is why the Princeton prof or the Russian programmer writing software for the blind would have been better for us. It's too bad for 2600 if it loses, but it's worse if it loses at the highest possible level and screws up a better chance down the road for the Supreme Court to see just how terrible this law can be. Contrary to popular belief, the Supreme Court doesn't reverse themselves all that often (and the most famous time they did-- Plessy v. Ferguson being overturned by Brown v. Board of Ed of Topeka, took 58 years).

    (IAAL, but this is just a prediction. YMMV.)

    • (and the most famous time they did-- Plessy v. Ferguson being overturned by Brown v. Board of Ed of Topeka, took 58 years).

      But Minersville School Dist. V. Gobitis (1940) was overturned by West Virginia State Bd. of Educ. v. Barnette (1943) in just three years, and unlike Plessy v. Ferguson, this doesn't radically effect whole social systems.
      • But Minersville School Dist. V. Gobitis (1940) was overturned by West Virginia State Bd. of Educ. v. Barnette (1943) in just three years, and unlike Plessy v. Ferguson, this doesn't radically effect whole social systems

        True, (though that involved one of the most conservative justices ever, McReynolds, leaving the bench in the interim) but I could still point you to far more examples of idiotic Supreme Court decisions that have stood because the Court doesn't have the guts to reverse itself than situations like Barnette where WWII gave them an excuse to rethink. To use some other First Amendment examples (which tend not to affect millions of schoolchildren) to go with your Barnette example, keep in mind that Beauharnais v. Illinois (1952, I think) is still on the books (group libel) despite nearly unanimous criticism from Justices and First Amendment scholars. So is Chaplinsky v. New Hampshire (1942, guy getting arrested for "fighting words" because the cops didn't like that he was calling them fascists).

        I think that we can agree that it's better to win the first time....

    • The EFF lawyers just have to work really hard to sell the case to the Court (specifically one of the justices' law clerks). Their appeal must be a clear constitutional issue (1st amendment) and they should probably use the phrase "prior restraint" a lot. Of course, IANAL, so what do I know...

      I agree that getting certiorari from the Court and then losing is worse than not being heard at all. The Court does sometimes reverse itself, but it does seem to hate to admit that it was ever wrong (even when it reverses itself). So if the EFF does try to go to the Court, they better be sure they can win.
  • Under the DMCA, the Librarian of Congress has the power to declare whether there are substantial non-infringing uses of a decryption technology. Should we be lobbying that person on the side?
    • You mean the

      "Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works" [loc.gov]

      Already happened, and it'll be a while before it can be lobbied again. It only applies to doing circumvention, not to technology.

      Take a look at the formal text (I'm mentioned twice! :-) ) at

      Recommendation of the Register of Copyrights and Determination of the Librarian of Congress, 65 FR 64555, October 27, 2000 [copyright.gov]

      For example:

      A review of the factors listed in 1201(a)(1)(C) supports the creation of this exemption. Although one can speculate that the availability of technological protection measures that deny access to the lists of blocked websites might be of benefit to the proprietors of filtering software, and might even increase the willingness of those proprietors to make the software available for use by the public, no commenters or witnesses came forward to make such an assertion. No information was presented relating to the use of either the filtering software or the lists of blocked websites for nonprofit archival, preservation and educational purposes. Nor was any information presented relating to whether the circumvention of technological measures preventing access to the lists has had an impact on the market for or value of filtering software or the compilations of objectionable websites contained therein. However, a persuasive case was made that the existence of access control measures has had an adverse effect on criticism and comment, and most likely news reporting, and that the prohibition on circumvention of access control measures will have an adverse effect."

      Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

  • by a3d0a3m (306585)
    The court rules on the law. It interprets the law. It doesn't change the law unless the law violates the constitution. It can clarify a law, but in this case, the court decided that DVD decrypting software was illegal. I don't think that anyone will disagree that that software is in violation of the DMCA and they have also decided that the DMCA isn't unconstitutional.
    If you're still angry about this decision, your next step is to contact your local senator and tell him or her your feelings on the DMCA and what you think they-- as your elected representative, should do. It is an election year afterall. Findout their stance on the issue and vote for someone who accurately represents your wishes!

    adam
  • by Seth Finkelstein (90154) on Saturday May 18, 2002 @01:17AM (#3541587) Homepage Journal
    Before anyone mods this down as redundant, note the links given in the article above go to the official PDF versions of the Kaplan ruling. That's proper, but the following unofficial hyperlinked version is much easier to read:

    http://eon.law.harvard.edu/openlaw/DVD/NY/trial/op . tml [harvard.edu]

    This is part of Harvard's Openlaw [harvard.edu] site, which has an excellent OpenDVD [harvard.edu] section

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

  • by GuNgA-DiN (17556) on Saturday May 18, 2002 @01:24AM (#3541603)
    It is a really good thing that the court has protected the movie studios by stopping people from linking to DeCSS! [google.com]. I mean what kind of chaos could ensue if people could link to and find [altavista.com] a copy of this evil program? I mean even companies like Disney would go out of business if people kept distributing [overture.com] this program! I am so glad that linking to DeCSS [lycos.com] is a crime! I feel much safer now.
  • Below the sightline (Score:3, Interesting)

    by PotatoHead (12771) <<gro.keegnepo> <ta> <guod>> on Saturday May 18, 2002 @02:14AM (#3541696) Homepage Journal
    The media giants just want to keep DECSS underground. Given the intent of the ruling, it has failed. Anyone can find DECSS and the tools to play a DVD they just have to look. Thats the catch. Having to look means that no entity can make commercial use of it. This means that our average joe will not be using Linux to play any serious media.

    Funny, I remember during the court proceedings commercial legal DVD players being announced and brought forward as evidence. Ever try to buy one of those? Know anyone that has?

    Linux is not something centrally controlled, or closed for that matter. Lots of big players don't like the fact that there is really no way to buy or leverage their technology to gain control. Control is the pillar for most of their business models.

    So rather than co-opt the system and compete for dollars, they would rather just not play.

    The DMCA has shown its effects, and this ruling is a shining example of legal control where they have no other realistic means.

    All of us slashdotters can and will be able to do what we want, but thats really it. If you think about it a little, that suits them perfectly. Most of the money is elsewhere.

  • by smiff (578693) on Saturday May 18, 2002 @02:40AM (#3541742)
    I have to question the first appeals court's competence in this case. They claimed that fair use remained intact because someone could use a video camera to copy part of a DVD. The court failed to realize that the image quality would be horrible, unless you used a tool to adjust the TV's frame rate. Such a tool would circumvent Macrovision. In other words, the court's recommended solution would require violating the exact same law!

    Outlawing DeCSS today, would be like outlawing the photocopier in the 1970's, or outlawing home movie projectors at the turn of the 19th/20th century.

    I am very disappointed that the court never addressed whether or not congress had the power to enact the anti-device provision [eff.org] in the first place. Forty-six law professors who specialize in intellectual property, claim that the anti-device provision is exactly the sort of thing that the constitution sought to avoid. The appeals court

    1. Misinterpreted the brief as only applying to time limits, and
    2. claimed that they did not have to rule on it because it was only mentioned in a footnote on the plantiff's appeal.

    I am further disturbed by the court's ban on electronic footnotes. I still have the right to put a URL in a print publication, but if I put it on a web site, I can be thrown in jail. What's so special about the internet that my free speech rights don't apply?

    Finally, the appeals court's prophecy that the internet will result in the viral spreading of movies and destruction of the movie industry is without merit. These predictions have been made with every single advancement in media technology, and with every single advancement they have been proven wrong. Even at the height of Napster, with a slumping economy, the record companies were making more money than the did before Napster started.

    With this court ruling, it is illegal to make an open source DVD player. And it is impracticle for ordinary citizens to make their own improvements to a closed source DVD player. Why can't churches distribute a script that only plays an edited version of rated R movies? Answer: because I can't make a DVD player that supports this feature. This clearly does the exact opposite of promoting usefulness in the arts and sciences.

    I live in a country where I have a constitutional right to publish directions on building a nuclear bomb, or publish a book on how to kill someone and get away with it. But I can be thrown in jail for telling someone how to make a tool that helps blind people read electronic books.

    • outlawing home movie projectors at the turn of the 19th/20th century.

      I've heard that the reason that the movie industry ended up in CA was because Edison didn't want to share his patented camera with them and they figured he wouldn't chase them that far to enforce the patent.
    • "What's so special about the internet that my free speech rights don't apply?"

      Good one mate!
    • Outlawing DeCSS today, would be like outlawing the photocopier in the 1970's, or outlawing home movie projectors at the turn of the 19th/20th century.


      Except that in the case of movie projectors there was no incumbent industry opposed to the technology. Movies may have displaced vaudeville or live stage performances (plays) but the writers and performers in the previous industry were able to move over and increase their markets etc.

      In the case of photocopiers publishers were only mildly threatened due to the huge quality, distribution and production advantages of commercial publication vs. photocopying. Over time, using existing copyright law and fair use provisions, an agreement between libraries and publishers over photocopying was worked out.

      The current situation is one in which there is a huge and bloated "incumbent" industry fed by tax payer subsidies, dodgy accounting and monopolistic distribution channels (just read up a bit about the fun history of *war* between movie theatre chains in the 40s ... ), weighed down with a huge and inefficient management and production structure (unlike all other industries - from steel-making to the public sector - there has been no "downsizing" in Hollywood), awash in drugs, illegal money and scandal, It is an industry that is nonetheless IMMENSELY powerful, out of all proportion to its importance in the economy culture and society and with no concommitant sense of responsibilty. This is an industry where people snort coke to come up with a new twist on the "boy gets girl" story where psychos, bulemics, drug addicts, sexual predators (casting couch!), and alcoholics rule the roost and where vacuous idiots like Jack Valenti represent them in industry associations (what does Jack do and what does Jack know - he's a bag man with a rolodex with seemingly exclusive and special rights to determine public policy). They feel it is their god given right to STOP all innovation if need be - to shut down the Internet and prohibit the production of computers without copy management. In their own eyes they are GODS with the right to TOTALLY determine the development of technology and the very course of history itself.

      I'd like an alternative industry or an earthquake to utterly crush Hollywood and its hangers-on (like Vivendi) but short of that I will ignore them and their products.

      Dumping the imported overtaxed tea in the harbor in Boston was a good idea ... we need something with similar popular appeal.
  • How is this NOT surprising? We all have heard the arguments. They're baseless, still knowing idiot judges, did you EXPECT ELSEWISE? If you were, then you're a fool.

    Still, the damage has been done. No fucking judge will pull every copy of deCss deritiave program from every computer at the time of judgement. All they are is just a talking head when it comes to the internet. If it's code, we have nearly perfected it by the time it goes to trial. If it's open-sourced, then speed that process up by 10 speed.

    All they can do is bitch and moan in part of thier corporate interests. We're waaaaay ahead of them.
    • Kaplan used to work for Time-Warner and should therefore never have sat on the case as he had a history of friendship (or at the very least, a successful working relationship with the prosecution and had a history of personal dislike of the defence council, including advising people not to work for him.

      The fact that Kaplan took the case shows that he was more interested in helping his friends and getting back at his enimies than in a fair trial.

      The whole thing was a pantomime from beginning to end, but stupidity (or the law) had nothing to do with it.

      TWW

  • EFF en banc appeal (Score:4, Informative)

    by smiff (578693) on Saturday May 18, 2002 @04:15AM (#3541888)
    Here [eff.org] is the EFF's en banc appeal. This is what the court read before it declined to hear the appeal. The first appeals court said they could censor DeCSS due to its functionality. My favorite quote from the EFF brief:

    But what computer programs say cannot be separated from what they do. Banning computer programs for what they enable computer users to do necessarily bans what computer scientists and programmers may say.

    ...Thus, even if the injunction targets only the nonspeech component, the effect on speech is identical. To aim at one is to aim at both.

    And to whet your appetite, here is the introduction:

    2600 Magazine hereby petitions for en banc review of the panel decision on the grounds that the decision makes new law that conflicts with governing United States Supreme Court and Second Circuit precedent in a case of exceptional importance.

    The question in this case, one of first impression, is whether the Free Speech Clause of the First Amendment permits a district court to enjoin the publication on an Internet web site of a computer program ("DeCSS") that can be used to unscramble the content of digitally recorded movies, or the publication of hyperlinks to other web sites that publish that program, under the purported authority of a provision of the Digital Millennium Copyright Act ("DMCA") that bars "trafficking" in devices designed to circumvent technologies aimed at controlling access to copyrighted works. 17 U.S.C. 1201(a)(2). The panel upheld such an injunction based on the mere speculation that Internet distribution of DeCSS would cause copyright infringement, even though it is undisputed that there was no demonstration of actual harm.

    In reaching this conclusion, the panel made two novel and unprecedented rulings regarding computer code and Internet publication that warrant this court's en banc review. The panel held that, although computer code is "speech" within the meaning of the First Amendment, it is subject to greater regulation than other speech because of its "functional capability" to be executed by a computer as well as read by a human eye. Slip op. 7515-16. The panel further opined that, although not a single incident of copyright infringement using DeCSS had been demonstrated in the district court, the injunction was adequately narrowly tailored to satisfy the First Amendment because the speed and scope of the Internet create the potential for such harm: "Posting DeCSS on the Appellants' web site makes it instantly available at the click of a mouse to any person in the world with access to the Internet." Slip op. 7522.

    The panel decision conflicts with governing First Amendment precedent. Even assuming that the government interest furthered by such an injunction (preventing theft of intellectual property) is content-neutral, the injunction fails the heightened scrutiny required of content-neutral speech restrictions under Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I); and Turner Broadcasting v. FCC, 520 U.S. 180 (1997) (Turner II). A fortiori, the order below fails the especially heightened scrutiny required of content-neutral injunctions of speech under the Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994).

    The panel decision further conflicts with governing precedent by treating the publication of computer code on the Internet as "functional" speech subject to diminished First Amendment protection. This creation of a new subcategory of less protected speech conflicts with Reno v. American Civil Liberties Union, 521 U.S. 844, 970 (1997)(ACLU I), which held that the Internet is a fully protected medium of speech and that regulation of speech on the Internet is subject to ordinary standards of First Amendment scrutiny. It likewise conflicts with City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994), which held that content-neutral prohibitions foreclosing the use of entire media "can suppress too much speech."

    Even if the panel correctly upheld the ban on posting DeCSS, its decision upholding the ban on merely posting hyperlinks to other web sites posting DeCSS should be held independently unconstitutional under settled First Amendment principles of intent and causation set forth in Brandenburg v. Ohio, 395 U.S. 44 (1969), and Bartnicki v. Vopper, 121 S. Ct. 1753 (2001).

    Because of these plain conflicts with governing precedent, the panel decision requires correction by this Court sitting en banc. The exceptional importance of the questions in this case is plain: computer code is a crucial part of our scientific and political discourse. Scientists, programmers and hobbyists publish computer code in textbooks, journals, popular magazines, and discussion groups Ñ both on the Internet and in print. Hyperlinks are one of the most easily understood and widely used form of computer code and, are, quite literally, the lifeblood of the Internet. As one court observed, "the ability to link from one computer to another, from one document to another across the Internet regardless of its status or physical location, is what makes the Web unique." ACLU v. Reno, 31 F.Supp. 2d 473, 483 (E.D. Pa. 1999), cert. granted 121 S.Ct. 1997 (U.S. May 21, 2001)(No. 00-1293) (ACLU II). The panel's unprecedented decision to relegate Internet transmission of computer code to second-class First Amendment citizenship plainly warrants the scrutiny of this entire Court.

  • by Anonymous Coward

    Plaintiffs have invested huge sums over the years in producing motion pictures in
    reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain.

    Notice that this paragraph says nothing about encryption, but talks about the law. Movies that were distributed on VHS were just as much protected by the law as DVDs are today. That is why the next sentence does not make sense:

    They contend that the advent of new technology should not alter this long established structure.

    The advent of "new technology" i.e. DeCSS, did not change the law anymore than the "new technology" that allowed the movie makers to encrypt the DVDs in the first place.

    In other words the *law* is about stopping people from unlawfully distributing copies. Decryption is about viewing content.

    Imagine going up to someone in the street who new a bit about computers but hasn't heard about this case. If you said to them "I want to watch DVDs on my computer, but it doesn't have windows so I have to make my own DVD player to watch them. Is that fair use of the DVD?" What would their answer be? How could they possibly say no?

    I know what someone will say - yes you can use DeCSS for fair use, but you can also use it for illegal use. What are they really saying? They mean "it is easier to stop people producing DeCSS than it is to stop people distributing copies". In other words "we're inadequate to enforce the law as it is, so we're going to make it more restrictive."

    Just my 2 pence...

    Julian

  • So this court of appeals decided that it didn't want to hear yet another appeal from 2600. This could mean either one of two very different things:

    1.) The appeals court sees no problem with either the district court ruling or the first appeals court ruling. As far as they're concerned, the case is done.

    2.) The appeals court sees that there is a few very important issues in the case and feels it would be best to defer the case to the Supreme Court ASAP in order to set a new nation-wide precedent. If this is what happened, then they're very interested in the case in question.

    So... which is it? The news articles talk of a one-line ruling. What did the one-line ruling say?
  • Two words (Score:3, Insightful)

    by defile (1059) on Saturday May 18, 2002 @01:27PM (#3542974) Homepage Journal

    Civil Disobedience.

    You have a moral obligation to ignore any laws that you do not agree with-- especially laws that are designed to protect the interests of a select few at the expense of society proper.

    http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/

"Of course power tools and alcohol don't mix. Everyone knows power tools aren't soluble in alcohol..." -- Crazy Nigel

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