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CA Supreme Court Saves LiViD, Pavlovich 251

Posted by timothy
from the for-now-anyhow dept.
joebeone writes "The California Supreme Court has suprisingly ruled that Matthew Pavlovich is not within their jurisdiction in the DVD-CCA's suit against his posting of DeCSS in relation to the development of the LiViD DVD player for open operating systems. What's surprising? It's surprising that they held that his posting of DeCSS was not actionable... (however the use of the program by users to circumvent CSS could be under the DMCA)."
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CA Supreme Court Saves LiViD, Pavlovich

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  • by fahrvergnugen (228539) <fahrv@ho[ ]il.com ['tma' in gap]> on Tuesday November 26, 2002 @12:25AM (#4756535) Homepage
    I couldn't be happier to hear this. Congratulations to Pavlovich and his legal team.

    This is another important step on the long road to overturning the DMCA.
    • Indeed (Score:2, Flamebait)

      by Akardam (186995)
      Sometimes, there are some sane Californians.
    • by DDX_2002 (592881) on Tuesday November 26, 2002 @12:52AM (#4756670) Journal
      This is another important step on the long road to overturning the DMCA.

      No... no, actually it's nothing of the sort. As the majority's concluding words said, Pavlovich may still have to face the music, just not in California. The only way you can overturn the DMCA is to actually get the courts to accept a challenge of the validity of the DMCA. The victory here is precisely the opposite - a refusal of the California courts to even consider the case. It's not really a victory of any kind for anyone.

      All that happened was that the CalSuprCt. took a look at the evidence and the arguments by the DVD-CCA for why the California courts should have jurisdiction and found that it all came down to one thing: foreseeability of harm to California companies' economic interests. The CalSuprCt. took a look at US Supreme Court precedent and said you had to show something more than mere foreseeability of harm to ground personal jurisdiction in that state.

      Things they did not say:

      1. That this ruling was broadly applicable.

      2. That the DMCA was invalid.

      3. That Pavlovich hadn't broken the DMCA.

      4. That Pavlovich couldn't be sued in Texas.

      5. That the DVD-CCA couldn't have shown jurisdiction if they'd shown some other evidence of intention other than just foreseeability of harm.

      When the Courts throw words like "novel", "unique", and "unprecedented" around in describing the facts of the case, it means the entire judgment you're reading is probably never going to come up again. When they expressly state that they are deciding a matter "extremely narrowly", it means they don't want it to ever come up again.

      Bottom line: the DVD-CCA can still go after Pavlovich in Texas or possibly Indiana. However, given the costs of litigating in a far away jurisdiction, it's still a victory and the DVD-CCA may give up or come up with a face-saving settlement.

      • Good summary, but you missed the most disturbing part. This ruling just barely made it. 4/3 isn't the strongest endorsment.

        So beware. The next time yop turn back your odometer you could be charged in Detroit. Next time you change the expiration date on milk/cheese you could be tried in Wisconsin. BEWARE IDIOT JUDGES!
      • by mysticgoat (582871) on Tuesday November 26, 2002 @03:21AM (#4757124) Homepage Journal

        > > This is another important step on the long road to overturning the DMCA.

        > No... no, actually it's nothing of the sort. As the majority's concluding words said, Pavlovich may still have to face the music, just not in California.

        This has a significant impact on the logistics of DMCA suits. It means that these plaintiffs in similar actions will have to determine the appropriate jurisdiction for for their suits and will not always have the home court advantages (mostly of pushing up the costs of defendants who have to travel from other jurisdictions). While not a major victory over DMCA, this is a definite victory in constraining DMCA's implementation.

        I don't know how widely this ruling will apply. IANAL, but my understanding is that this would only definitely apply within that specific jurisdiction, but that other jurisdictions would be very likely to accept the same argument when it is presented to them.

  • by jpt.d (444929) <abfall@r o g e r s .com> on Tuesday November 26, 2002 @12:26AM (#4756542)
    I have heard lots and lots of this stuff for the US but what about Canada?

    Can I play DVDs under Linux in Canada with LiViD legally?

    On another topic that other law that was mentioned here last week I think it was, would help the use of the program in the US i think
    • by jon787 (512497) on Tuesday November 26, 2002 @12:33AM (#4756581) Homepage Journal
      Who cares if its 'legal' or not. If you aren't using to steal movies (or view stolen ones) then go do it anyway. It's called civil disobediance, it can be a very powerful force.
      • by whereiswaldo (459052) on Tuesday November 26, 2002 @01:11AM (#4756733) Journal
        Damn straight. 'Legal' doesn't mean 'Right'. It means that the court and the government and even large corporations think it should be allowed. 'Illegal' means the opposite of that, of course.

        I like to think about what an ant colony would be like if one ant out of the millions was 'persecuted' by someone with a magnifying glass and as a result the rest of the ants avoided leaving the nest. What good could they accomplish if they were so easily deterred?

        In reality, ants accomplish amazing feats just by sheer number, tenacity, and to a lesser extent strength.

        Yes, friends, humans should be more like ants. :)
      • If you aren't using to steal movies (or view stolen ones) then go do it anyway.

        Two things:

        First, there is no such thing as stealing a movie. It's information and its properties are governed by information physics, not classical physics. You can steal the DVD from a store, but all you're doing is stealing a piece of metal and plastic that carries a representation of the data that, when decoded, gives an approximation of the movie. (Remember mpeg2 is lossy.)

        Second, if you're not using LiViD (or any other computer software for that matter) in a way that costs or could potentially cost the (RI|MP)AA money, they really don't care. Remember that when they buy congress or the president they do it so they'll make more money down the line. When they sue Joe Average because he's downloading movies online, it's not because he's costing them a large enough sum that it really matters. It's because they expect that if the case gets big publicity other downloaders will be scared away from filesharing programs. If nobody stopped downloading and sharing when the ??AA sued someone, it would cease to be worth their time and they would stop doing it -- but that's another matter.

        The bottom line is, as long as you're only playing DVDs that you've bought legally (not ripping or sharing them), the ??AA doesn't care. Sure, they might be upset that you're using a free operating system or free software because people exposed to that community just might gain enough knowledge about how information works to figure out that their business model is outdated and needs to be changed, but I have no idea if they're even thinking on that level. To them, their business model is the right one, and people are costing them money by obtaining copies of movies online.
  • Not Actionable? (Score:4, Insightful)

    by autopr0n (534291) on Tuesday November 26, 2002 @12:28AM (#4756551) Homepage Journal
    What does this mean exactly? That Posting DeCSS to the internet isn't bad enough to be sued or whatever? Or is it something more specific to this case, like his posting to the internet doesn't put him under the jurisdiction of Cali courts?
    • Re:Not Actionable? (Score:5, Informative)

      by Lionel Hutts (65507) on Tuesday November 26, 2002 @12:33AM (#4756584) Journal
      "Not actionable" would mean that it is legal: that doing it does not expose you to suit. That is not at all what the court held: it held only that the California courts do not have jurisdiction.

      Par for the course for Slashdot reporting, I guess.
    • Re:Not Actionable? (Score:4, Insightful)

      by LostCluster (625375) on Tuesday November 26, 2002 @01:12AM (#4756734)
      Nope, if you actually read the ruling it says that the court refused to allow posting DeCSS from outside of California onto a server outside of California to be actionable in a California court simply because most of the movie industry and the company the oversees CSS is in California. Not that it is legal to do so, just that California state courts are the wrong place you if you aren't from California.

      This has nothing to do with the DMCA. That's a federal law, so it doesn't apply here. If you want to chase somebody using the DMCA, you file a case in federal court. California state courts are the wrong jurisdiction altogether.

      This is nothing but a lawyer's mistake, not a sign that courts are striking down the DMCA. Don't /. into more than it is.
  • by C_To (628122) on Tuesday November 26, 2002 @12:28AM (#4756555)
    I find it disgusting that the only legitatment DVD player for PCs is for Windows, and that there is no open source alternative, for those who don't wish to spend money for a bloated operating system that makes my purchases obsolete in a week's time.

    So how are we to play DVDs in our *nix Operating systems? We're not, we're suppose to buy Windows, and shell out extra money for a DVD player. This makes a purchase of a DVD drive useless for an open source based PC.
    • by chill (34294) on Tuesday November 26, 2002 @12:52AM (#4756667) Journal
      There are DVD players for Linux. The problem arises when you realize the DVD consortium wants a license fee ($10,000, I think) for each type of "product" such as a software player.

      In theory, someone could pay the $10K and release a closed-source plug-in for Ogle/MPlayer/Xine. However, I'm not sure if there are per-unit fees associated. There probably are and I don't think the consortium makes allowances for free software.
      • by chill (34294) on Tuesday November 26, 2002 @01:21AM (#4756764) Journal
        I looked it up: (http://www.dvdfourm.org) and there are NO per-unit fees. Buy book, sign the NDA ($10,000) and someone could legally release a binary-only DECSS plugin. Yes, it could be given away freely -- just no source.

        Personally, I think RedHat, Lindows & the others should do this for the people who just want to play their movies without getting into religious debates over licenses.

        Hell, $10,000 isn't lunch money if spread between SuSE, Mandrake, Red Hat, UnitedLinux, IBM, etc.

        -Charles
        • The question that immediately springs to my mind is not about how affordable it is, but why the fuck should we have to? It's not enough that people are shelling out for physical DVD players and overpriced DVDs? Now we have to pay additional fees to actually play the purchased DVDs on the purchased players?
          • You don't. Someone (a company) needs to pay the one-time licensing fee to make it legal. Then freely distribute the binary-only plugin.

            You, as a user, wouldn't pay an additional fee. There are no royalties with DVD formats, only what is on them.

            Hmmm... I need to send a letter to SuSE, Sun and RedHat. They seem to want to push into the desktop market and this is a big sticking point.
        • Sounds good - but can I create my own distro of Linux and include/distribute the plugin? Something tells me I probably can't, because I wouldn't be the original purchaser of the license. This same idea seems to indicate that the major linux distros couldn't group together - they would probably each have to pay $10,000 to license a copy, and only they could distribute it (as soon as you copied your Mandrake and handed it to a friend, you would be breaking the license agreement)...
          • While I didn't read the entire DVD Forum specs, etc. I went through most of what is publically available.

            In order to get the books with the specs, you must sign and NDA that you aren't going to share the info in the books.

            They explicitly state that there are no per-unit royalties and once the NDA & book fees are paid, there is no more money to pay in.

            The main focus is on hardware manufacturers -- they don't give a damn about copying software as they only make money from the NDA/License agreement.

            So YES you could redistribute the BINARY code, just not the source. Source would violate the NDA. NVidia has already proved there is a Linux market for binary-only drivers. That is all this would be -- a binary plugin.

            However, no one but the original licensee could use the official DVD logos -- that is part of the agreement. If you don't use the logos (and there is a FAQ question on that, but it deals with hardware), then all is cool.

            Damn it! I need to hit a small lottery payout. I'd buy the darn license and pay whoever could write such a plugin a fee and release it as a freely redistributable binary. $10K isn't a lot to a company, but I don't have that laying around.
        • by Sontas (6747) on Tuesday November 26, 2002 @04:04AM (#4757283)
          You are partially right. The $10,000 you mention is for the DVD-Forum specifications. These do not have anything to do with CSS. No where in the specs do they mentions CSS except to note the inclusion of encryption bits in the PES packet headers and some CGMS bits in the IFOs. To license CSS requires going through DVDCCA which is a much higher dollar investment. It also doesn't have per unit royalties associated with players (there are per unit royalties on css encrypted discs, however), but the one time fees for getting CSS licensing for a player are in the area of $1 million last I heard. This is put in escrow/trust, so it isn't money spent so much as money you may lose if you fail to meet the licensing requirements, i.e. your keys are in plaintext in the app someplace.

          Many companies have invested in linux DVD player software development, but few have released publicly or have wide use bases. None are free as there are per unit royalities associated with ac-3 and mpeg-2 decoding (Dolby and MPEGLA collecting, respectively).

          So it isn't as simple as RedHat and others dropping some money in a bucket. Companies are afraid of their software getting hacked, losing their shirts due to piracy of the non-free software, running into myriad problems with driver and hardware support which they tolerate in Windows (because of the market and OEM demand), having to deal with frequent kernel version changes (thus potential kernel module issues), and in also having to support their product on a historically "difficult" to use and administer OS.
  • CSS plug-in (Score:2, Insightful)

    by dwtinkle (194997)
    I do believe that I have seen a CSS plug-in for Xine, is that also illegal? I really would like to watch my DVDs on my laptop when I'm on the road. But with out a proper CSS plug-in am I going to be breaking the law, every time I watch Fight Club?

    • According to the MPAA's gestapo, yes. This is the crux of the DMCA issue as it pertains to the use of your own materials.
    • Frankly, I do not think you should obey an immoral law, so long as you sincerely believe that your actions do not harm the legitimate rights that the Copyright owner should have. As a practical matter, your chances of getting caught watching your own DVD on your own laptop with an unlicenced player are about 1 in 10^-23.

      As a separate issue, it isn't clear that a player program using "unauthorized" decryption is illegal if it doesn't actually expose the cleartext. The act of viewing the movie is not what is illegal, but rather the act of converting it into a form where the decrypted work can be captured is what creates the problem. DeCSS, as far as the DMCA goes, did expose the cleartext, so the fact that it has been ruled illegal does not answer the question.
  • Letters to Congress (Score:2, Interesting)

    by mdechene (607874)
    Kids,
    1.) Read this [slashdot.org].
    2.) Change the name from me to you, my senator to yours.
    3.) Mail it in
    4.) ??? 5.) Profit.
  • DeCSS is Dead (Score:5, Interesting)

    by ksw2 (520093) <obeyeaterNO@SPAMgmail.com> on Tuesday November 26, 2002 @12:29AM (#4756560) Homepage
    It's time people realized what DeCSS really is... proof of concept code. There is far better code (that actually works!) in the Ogle DVD player (Linux) that nobody seems to know about.

    On the other hand, maybe we should keep it quiet.

    • Yeah that software in question works really well. I use it with both Ogle and VideoLAN (I haven't decided which is better yet) and the only issue I had was with a damaged disk. I also have css-auth and it truely is proof of concept code, nothing more.
    • Re:DeCSS is Dead (Score:4, Insightful)

      by bwt (68845) on Tuesday November 26, 2002 @12:47AM (#4756644) Homepage
      Sure, everybody knows that. The litigation however was about DeCSS, which happened to be the first.

      The decision today isn't even on the merits of DeCSS with respect to trade secret law. It is just a matter of who gets to decide. If you post something on the net in Texas/Indiana that allegedly causes damage to a trade secret in California, can you be taken to court there. The Court said "yes, but only if you target the damage toward California, and knowledge of the general industry that might be affected is not sufficient to meet this criteria".

      So Pavlovich can defend his action in the 5th Circuit where the DVD-CCA can suck on Vault v Quaid which says even if state law prohibited reverse engineering, reverse engineering is legal because Federal copyight law preempts state law.
    • by kir (583)

      I really like ogle! Command line or gui! Suh-weet!

      http://www.dtek.chalmers.se/groups/dvd/ [chalmers.se]

      Or check out #ogle on irc.openprojects.net. They seem like really nice guys. I once mentioned to them it would be nice to be able to pass a command line option for full screen so I could make it stupid-easy for my wife and daughter to watch DVDs (you know... pushin 'f' is hard). They were very cool and said they'd add support in for that (CVS). I'm not sure if they've done it yet (I haven't checked), but their attitude towards my suggestion was very positive. Other projects are not nearly as cool about that (i.e. a player that starts with m).

      It's a good app. It has no problems playing any of my DVDs (region 1 or 2). Cool.

    • by vinsci (537958) on Tuesday November 26, 2002 @01:27AM (#4756778) Journal
      The Ogle DVD Player home page is here [chalmers.se].

      For Windows, there's the full-featured FusionsSoft DVD Player which is described as published under the GPL license, but where is the source? The indicated home page [chez.com] of the project is constantly over its monthly bandwidth quota. The last version available seems to be from July, 2002, version 5.0.0.1.

      The binaries for FusionSoft DVD Player can be found here [pctip.ch]. Gut again, since it's GPL, the sources should be somewhere. The program itself is multilingual, although you may have to do some german to download it and some french during the installation.

  • Time to move servers (Score:3, Interesting)

    by dnoyeb (547705) on Tuesday November 26, 2002 @12:38AM (#4756609) Homepage Journal
    My server is in CA, is yours?
  • by vena (318873) on Tuesday November 26, 2002 @12:39AM (#4756612)
    their posting the DeCSS code which they use in their dvd player is legal, but because users using their dvd player are using DeCSS, their users are violating the DMCA, thus criminals?

    that doesn't sound like much of a leap forward.
    • Nope not even that. The DMCA has nothing to do with this at all, it's a federal law and we're talking about a CA state case. The CA Supreme Court simply ruled that California will hold you accountable for posting DeCSS unless you or your server are in their state. It says nothing about the Feds.
  • Moot? (Score:5, Insightful)

    by FPhlyer (14433) on Tuesday November 26, 2002 @12:39AM (#4756613) Homepage
    Is it just me, or does it seem like this whole lawsuit to stop DeCSS became a moot point the second the DeCSS code hit the net?

    Once the code was published, Pandora's proverbial box was opened. They can never shove it out of view again.

    Today, DeCSS based players abound aplenty. And there are rippers and other tools based around the code. Even if they win the case in court, they've lost in the court of real life.
    • Re:Moot? (Score:3, Insightful)

      by ender81b (520454)
      I'm guessing they are doing it now to serve as an 'example' the next time they release some sort of encoding.

      They want to scare the people who might crack the code, of course I think userfriendly explained it the best [userfriendly.org].
    • What's the point of the suit? Is it to make sure the secrets of CSS stay locked away? May be part of it, but I doubt that's all.

      More likely, they're trying to send a message to serve as an example and ward off future crack attempts. That, and $$. DeCSS was distributed freely ergo they're not collecting any licensing fees. From their point of view, someone has to pay.
      • More likely, they're trying to send a message to serve as an example and ward off future crack attempts.
        Which, in my opinion (and you may agree), is far more devious than just trying to shut up DeCSS. I will state outright that I am not in favor of illegally copying copyrighted material, but the right to take stuff apart and tinker is downright SACRED! This is the same problem I have with shutting down mod chippers and prosecuting those who break encryption schemes. Sure, Corporation X has a right to protect its copyrighted materials, but the burden of protection should be on Corporation X. The government has no business stepping in and artificially bolstering its content protection schemes. If your encryption algorithm is so trivial that some teenager with a PC can crack it, then it is not deserving of legal protection. I think the most astonishing case of this was when Skylarov (I think) broke a rot-13 "encrypted" e-document and got prosecuted for it. That's absolutely ridiculous. Now, whenever this argument comes up, somebody inevitably brings out the old analogy of "his locks were so easy to pick, I have every right to steal stuff from his apartment." However, there is one fundamental difference. Cracking an encryption algorithm is not stealing. It is more analogous to getting a set of locks and practicing lock picking techniques on them. There is nothing inherently wrong with this. It's not even wrong to show others how to do it. In fact, as word gets out that people know how to pick the locks, ideally the result would be even better locks for everybody. Once you pick a lock and take something, then you have crossed the line. Similarly, I should be able to reverse-engineer any algorithm I please, and show anybody else how to do the same. The result should be better encryption for all. However, once I use that knowledge to "stal" or illegally copy copyrighted work, prosecution is justified via the existing court system -- special shortcuts for digital works are not fair. I get pretty riled up whenever I view something as a threat to my right to tinker. Just my rant, I guess.
  • by MoThugz (560556) on Tuesday November 26, 2002 @12:41AM (#4756621) Homepage
    JUDGE: Would that you could render this extermination unnecessary by renouncing this method of illegal decryption!
    Pavlovich: No, Your Honor, it cannot be. I don't think much of our profession, but, contrasted with respectability, it is comparatively honest. No, Your Honor, I shall live and die a Pirate King.
    (SONG -- PIRATE KING)
    Pavlovich: Oh, better far to live and die
    Under the flightless bird I fly,
    Than play a corporate raider's part
    With a pirate head and a pirate heart.
    Away to the cheating world go you,
    Where pirates all are well-to-do;
    But I'll be true to the song I sing,
    And live and die a Pirate King.
    For I am a Pirate King!
    And it is, it is a glorious thing
    To be a Pirate King!
    For I am a Pirate King!
    SLASHDOTTERS:You are!
    Hurrah for the Pirate King!
    Pavlovich:And it is, it is a glorious thing
    To be a Pirate King.
    SLASHDOTTERS:It is!
    Hurrah for the Pirate King!
    (Inserted to avoid lameness filter.)
    Hurrah for the Pirate King!
    Pavlovich:When I sally forth to seek my prey
    I help myself in a royal way.
    I rip a few more flicks, it's true,
    Than a well-bred hacker ought to do;
    But many a hack with a first-class clone,
    If he wants to call his warez his own,
    Must manage somehow to get through
    More lines of code than e'er I do,
    For I am a Pirate King!
    And it is, it is a glorious thing
    To be a Pirate King!
    For I am a Pirate King!
    SLASHDOTTERS:You are!
    Hurrah for the Pirate King!
    Pavlovich:And it is, it is a glorious thing
    To be a Pirate King.
    SLASHDOTTERS:It is!
    Hurrah for the Pirate King!
    (the lameness filter, to avoid, inserted.)
    Hurrah for the Pirate King!
    (exeunt.)
  • by qodfathr (255387) on Tuesday November 26, 2002 @12:43AM (#4756631)
    While I always hate to see soem "bad guy" get off on a technicality, here's a case where one of the good guys squeaked by for similar reasons.

    The key to winning the case was that Pavlovich did not know that DVD CCA is based out of California (until after they sued him), and because he did not know this, certain legal tests fail, and he cannot be pursued as the suit was filed.

    Yes, there were many other deep, legal issues, but thisone appears to be the main reason.

    Maybe he learned something from Bill Gates, who did a fabulous job during this legal battles to convince the judge that he could not remember a single thing. What lessons are our higher courts teaching us?! I thought learning from the past was a good thing, but apparently forgetting the past is much safer.
    • by bwt (68845) on Tuesday November 26, 2002 @01:01AM (#4756698) Homepage
      The key to winning the case was that Pavlovich did not know that DVD CCA is based out of California (until after they sued him), and because he did not know this, certain legal tests fail, and he cannot be pursued as the suit was filed.

      I think you overemphasize the importance of this element of the decision. Him not knowing the DVDCCA was in California was simply the batting down of one of the lame arguments made by the DVDCCA.

      The real thrust of the matter is that you have to "target" your activity towards a state in order to be sued there. Pavlovich didn't and his Indiana/Texas based activity wasn't governed by California law. That is not a technicality, it is a very important result that says that passive posting on the internet will not be governed by the least common denominator laws.

      Keep in mind that this decision is not the main decision on the merits -- that will come down when the "Bunner" appeal is decided. Here Pavlovich specifically argued that he shouldn't be lumped in to the California lawsuit because it wasn't California's place to decide if what he did in TX/IN was illegal because he didn't have any relationship with California.
      • It's not that groundbreaking because this is not that new of a concept. State laws cannot control what is posted on the Internet on servers outside of their state, nor can they regulate what comes into the state over the Internet because that would be interstate commerce, which is purely a federal domain. Porn operators can be reassured that they cannot be dragged into the Bible Belt for things they post from their home state, but I think they already knew that.
        • Umm, this was a 4-3 decision. That pretty much defines groundbreaking. Your statement that state law cannot govern what is posted outside of their state is just flat wrong, and THIS court in fact gave the standard for when exactly that can happen, and carefully went over several different arguments that would have exposed Pavlovich's out of state conduct to CA law, but in each case was unable to find the critical elements.

          In a nutshell, Pavlovich didn't "target" his action at California. He didn't target DVD-CCA because he didn't know they were in CA when his site posted DeCSS. He didn't target the movie industry, because they were copyright, not trade secret owners and it has to be the tort in question that was targeted at CA. He didn't target CA business clients because he wasn't in business and his website was "passive" and was therefore not aimed in any particular direction.

          Had any one of those elements gone the other way, this case would have been decided differently. This is a very groundbreaking case because it really finds the absolute boundary of long arm jurisdiction statutes with regard to the internet, and (thank god) it found it stopped just short of where it would have had to be to hobble the internet.
  • by Anonymous Coward on Tuesday November 26, 2002 @12:45AM (#4756635)
    This is an unset area of law, based around the passage of a law surrounding a group of poorly-understood-by-the-general-populace and very new concepts. You will get inconsistent rulings on this subject, and will continue to do so for a very long time. Conservative judges, and corrupt judges with entertainment-industry links, will uphold the DMCA above and beyond the language in the DMCA itself. Liberal judges, and judges who actually understand the technical issues enough to see the DMCA is in fact about as direct a violation of constutional rights as you can get, will say the DMCA can't be enforced. None of this will be resolved until the supreme court picks up a DMCA case and strikes the DMCA down. (If the supremes uphold the DMCA, you will continue to get inconsistent rulings, as judges and juries alike look at the law, go "this is rediculous", and N-U-L-L-I-F-Y..)
  • by the_2nd_coming (444906) on Tuesday November 26, 2002 @12:47AM (#4756648) Homepage
    just distribute and talk about it. oops.
  • Better watch out... (Score:5, Interesting)

    by MoThugz (560556) on Tuesday November 26, 2002 @12:53AM (#4756675) Homepage
    We need to be extremely careful moving forward. Challenging such things as DeCSS and DMCA with the term 'open source' leads, just as it did here, to the ideal that the open source community is simply a group of software pirates.

    There must be a point made, whether by press release or otherwise, that Open Source does not in anyway support the copyright infringement of any commercially available (or, for that matter, freely available) software. We need to make it clear that we are not advocates of breaking the law, as this judgement seems to suggest.

    However, saying that "I am not guilty of copyright infridgement because I work for the open source community" is not a valid arguement. This is probably why it has been associated with piracy. Again, we must make the difference clear to everyone so they don't get the wrong impression.

    On a similar note, since the Judges of the court obviously do not understand what Open Source is and labeled "us" as "rogue software pirates", is there any legal action we can take against the court in a defamation of character suit? It's obvious they have just degraded us and our cause without a viable reason.
    • On a similar note, since the Judges of the court obviously do not understand what Open Source is and labeled "us" as "rogue software pirates", is there any legal action we can take against the court in a defamation of character suit? It's obvious they have just degraded us and our cause without a viable reason.

      Er, where did you read that?

      The judges would invoke their absolute immunity. This may seem unsporting, but imagine what would happen to the judicial decision if every losing party could tie the judge up in a lawsuit. Also, judges should be fearless in writing their opinions. That said, "rogue software pirates" is not very professional and suggests prejudice. Too much of that sometimes gets judges recused from further proceedings to avoid any "appearance of impropriety."

      There -- much more than you wanted to know. :)
    • Say what? (Score:3, Informative)

      by LostCluster (625375)
      What ruling did you read? The phrase "rouge software pirates" does not appear anywhere at all inside it. You better watch out, they may sue you for libel for making up that quote.

      This case isn't about Open Source at all. All this ruling said is that CA was the wrong state to sue this defendant.

  • by MacAndrew (463832) on Tuesday November 26, 2002 @12:54AM (#4756677) Homepage
    At least it means little to the general cause of resisting the DCMA. It is very good news for the defendant (for the moment) and an interesting discussion of personal jurisdiction, if you're into that sort of this (I am).

    Personal jurisdictional is a constitutional question of due process, and governs whether a court may requires or permit a party to be joined in a legal action. Whether a court has personal jurisdiction is usually gauged by the party's contacts with the state, such as residence, committing significant acts there, consent to jurisdiction, and so on. If the court does not have jurisidiction, the case will be dismissed (at least as to that party) without addressing the merits of the lawsuit.

    That's what happened here. The court was quite explicit in its conclusion which questions it was or was not deciding. It is interesting speculation whether this decision is mistaken, and where the plaintiff might next sue, if at all, so as to be assured of personal jurisdiction. It is also possible that the plaintiff dropped the ball and could have persuaded the California court on jurisdiction had it adduced more facts regarding the defendant's actions.

    A parting caveat -- I just gave the opinion a power read and could be clueless on something important. However, the nature of the court's discussion is extremely familiar, and doesn't have a thing to do with DeCSS.

    We, however, emphasize the narrowness of our decision. A defendant's

    knowledge that his tortious conduct may harm industries centered in California is
    undoubtedly relevant to any determination of personal jurisdiction and may
    support a finding of jurisdiction. We merely hold that this knowledge alone is
    insufficient to establish express aiming at the forum state as required by the effects
    test. Because the only evidence in the record even suggesting express aiming is
    Pavlovich's knowledge that his conduct may harm industries centered in
    California, due process requires us to decline jurisdiction over his person.
    In addition, we are not confronted with a situation where the plaintiff has
    no other forum to pursue its claims and therefore do not address that situation.
    DVD CCA has the ability and resources to pursue Pavlovich in another forum
    such as Indiana or Texas. Our decision today does not foreclose it from doing so.
    Pavlovich may still face the music--just not in California.
    • In addition, we are not confronted with a situation where the plaintiff has no other forum to pursue its claims and therefore do not address that situation. DVD CCA has the ability and resources to pursue Pavlovich in another forum such as Indiana or Texas. Our decision today does not foreclose it from doing so. Pavlovich may still face the music--just not in California. 1. Pick the right state 2. ?????? 3. Profit!
  • Minor correction (Score:4, Informative)

    by cpt kangarooski (3773) on Tuesday November 26, 2002 @01:05AM (#4756712) Homepage
    The court did NOT say that Pavlovich's posting wasn't actionable -- they said that he is not within the jurisdiction of the California courts. Pavlovich may yet have to go to court, just in a different state. Other people who post DeCSS may be within California's jurisdiction.
  • Having read through Pamela Samuelson's paper entitled "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised", which was linked to in the writeup, I am struck by a major assumption on which Samuelson relies.

    Throughout the paper, Samuelson assumes that the "New Economy" will be stifled by the "unpredictable, overbroad, inconsistent, and complex" anti-circumvention provisions of the DMCA. Clearly, Samuelson is trying to appeal to the economic interests of her to combat the restrictive nature of the DMCA. It can be seen, then, that in "Intellectual Property and the Digital Economy" Samuelson is positing a conflict between the interests of the "New Economy" and those of the "Old Economy", i.e., the media interests backing the DMCA

    The problem with this approach is (of course) that the so-called "New Economy" is widely precieved at present to have been something of a bust, thanks mostly to the feeble state of the stock market, in particular the 60 per cent plus decline in the NASDAQ. Therefore, the "Old Economy" has a leg up in Samuelson's conflict of economic interests, which does not bode well for future instances of anti-copyright legislation.

    Mr, Pavlovich has gotten off, as it were, on a technicality. Given the provisions of the DCMA, however, had he been a California resident, his fate may have been grim indeed, and given the advantages presently enjoyed by the "Old Economy" pro-copyright forces, it appears we will all have to deal with the DCMA for some time to come.

  • by thoth_amon (560574) on Tuesday November 26, 2002 @01:14AM (#4756745)
    Disclaimer: IANAL, but I'll give you my legal opinions anyway. ;-)

    While I am all for this decision, it seems the major benefit is that it places additional legal hurdles before DVD CCA. They have to sue each non-Californian web site individually, in the state where that site resides. My guess is that the biggest hassle here as far as the DVD CCA is concerned is that each state has different laws, and the plaintiffs would have to show that posting the material was illegal in the state where the web site resides. That not only shoots the legal costs up sharply, but then you also risk having web site operators in states where posting such material is entirely legal and protected. (Never mind federal laws such as the DMCA that might also apply to a case like this.)

    Of course, maybe the DVD CCA could sue from another state that has more "liberal" policies on what is within its jurisdiction.

    The decision does NOT seem to make any statements about the legality of reverse-engineering CSS, or writing code to implement the DeCSS algorithm, or distributing that code. The court did not find that distributing DeCSS was legal, but rather that under these specific circumstances, Californian courts are not the ones to decide this. Not that I would have expected a more sweeping opinion given the specific focus of the question before the court.

    Bottom line: This is a roadblock for DVD CCA and organizations that are similarly evil, but it is far from a conclusive win or even a sweeping victory -- at least that's how it looks from here. Any people with more legal expertise care to add to or correct these thoughts?
  • by Anonymous Coward
    I skimmed the actual decision and the most disturbing fact is it was 4:3. There were three dissenters who wanted to rule the other way!

    The decision came down to the vote of a single justice who chose the "right" side.

    I'll let you draw your own comparisons to the US Supreme Court decision on the Bush vs Gore election of 2000.
  • by bkontr (624500) on Tuesday November 26, 2002 @01:32AM (#4756794) Homepage Journal
    Not according to DCMA:

    (f ) Reverse Engineering.--(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

    I am not a lawyer but it seems to me that the case should be thrown out.
    • Not only that..but further:

      `(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

      Further:

      `(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

      Interoperatibity being defined as:

      `(4) For purposes of this subsection, the term `interoperability' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

      Being that Linux software players need to exchange the necessary information to decrypt CSS in order to interoperate with Linux drivers before a DVD can be played, why is DeCSS illegal in the first place?

      • "solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section."

        Plaintiffs (read "MPAA") point out that DeCSS gives you the ability to make perfect copies of DVDs. Therefore (they argue), DeCSS is not distributed "solely for the purpose of enabling..."
    • "Reverse Engineering."

      This means you have the right to re-invent the wheel.

      " that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title."

      This means you can't share your work. All your friends have to re-invent the wheel on their own.
  • by Anonymous Coward on Tuesday November 26, 2002 @01:36AM (#4756810)
    Livid was fully functioning as was DeCSS BEFORE nov 30th 1999.

    DMCA does not cover software or hardware created BEFORE the begginning of 2000.

    This is a fact.

    DMCA will NEVER have any bearing on the original frozen sources of Nov 1999 Livid and livid is now "clean" of any tainting from the XING key anyways.

    Current versions use brute force key cracking,a s do other DVD ripping source examples.

    DMCA start date was a few months too late.

    Too badfor DMCA but its a fact, the origianl aguments were NEVER about DMCA they were about theft of XING key using a debugger violating the click-wrap license.

    • "DMCA does not cover software or hardware created BEFORE the begginning of 2000"

      RTFL. You can write it (maybe), but you can't distribute it. It doesn't matter if the program was written in in the Nineteenth Century: If it's available for download today, the host is in violation of the DMCA.
  • by pmineiro (556272) <paulNO@SPAMmineiro.com> on Tuesday November 26, 2002 @01:48AM (#4756845) Homepage
    The honorable Judge J. Baxter writes in dissent:
    The record indicates that, by intentionally posting an unlicensed decryption code for the Content Scrambling System (CSS) on their Internet Web sites, defendant and his network of ``open source'' associates sought to undermine and defeat the very purposes of the licensed CSS encrytion technology ...

    Wow! Makes free software sound like the mafia. (Those are his quotes around open source, btw.)

    I think we (open source) have a major PR problem with the judiciary to address.

    -- p
    • I think it's the reverse. That the judge understands that the correct definition of open source is legal, quoting the phrase implys "he calls this open source, but I don't." The fact is, Open Source is not a legal sheild that protects you from the evils of copyright law, in fact, it's a waiving of some of your copyrights you're granted by law in exchange for a promise everybody who modifies your work will waive their copyright too.

      Bottom line: Don't go into court expecting "but it was for an Open Source project!" to get you off the hook for anything.
      • The fact is, Open Source is not a legal sheild that protects you from the evils of copyright law, in fact, it's a waiving of some of your copyrights you're granted by law in exchange for a promise everybody who modifies your work will waive their copyright too.

        Open Source giveths, not takeths away B-)...authors who release code under the GPL does not waive any of their original rights, they just give more rights to the users of their works.
        • You did not give something unless you A: Had it and B: Don't have it any more. Authors who choose to release code under the GPL are giving up their right to insist that everybody who ever uses their code pay them.
    • I think we (open source) have a major PR problem with the judiciary to address.

      If by 'PR', you mean we don't pay them as much as the opposition, then yes, you are correct.

      Support RedHat. I may not think their stuff is all that great, but it is important that we have a well-funded ally, and RedHat has the best record without a doubt.

      (It's a shame I should have to say this, but no, I don't work for them. In fact, I'm a 'BSD'er.)
  • by Anonymous Coward on Tuesday November 26, 2002 @01:59AM (#4756888)
    To reiterate the comments of previous /. members, this is not a win on substance, but on procedure. The Court outlines classic law school cases of personal jurisdiction. Personal jurisdiction is simply "does the defendant have enough contacts with the state for the court to have jurisdiction over them." One of the cases in law school casebooks is Zippo v. Zippo, where the court introduces a "sliding scale" of what level of interaction on the internet will meet the minimum level of contacts necessary to "avail himself of the forum's benefits." On one end, a simple ad does not amount to a minimum contact with the state. On the other end, "interactive" sites may be seen as meeting the "minimum contact." Accordingly, this case was properly decided in the "passive" site and does not meet the level of contacts prescribed by the courts. That's why the words that the Court uses, "The site only provided information; it did not solicit or transact any business and permitted no interactive exchange of information between its operators and visitors." is very important. It affirmed the Zippo v. Zippo ruling. To be honest, I'm surprised the Court of Appeals applied the verdict the way they did.
    Again, as mentioned before me, this simply dismisses the case due to lack of personal jurisidction. It does not prevent the Plaintiff from trying again in TX. And worst of all, it doesn't prevent a huge company like the RIAA from suing in TX.
    • Quick speculation to any lawyers and law students. Do you think that if personal jurisdiction would have failed, the defendant would have had a credible claim on venue. Venue is not a constitutional issue as much as personal jurisdiction, but it's hard to see a California state court claiming that venue is fair to the defendant in this case. I can't help much since I only really know the lovely FRCP.
  • by Featureless (599963) on Tuesday November 26, 2002 @02:16AM (#4756942) Journal
    Pavlovich lives in Texas. The DVD-CCA (the particular media-industry front organization prosecuting Pavlovich) sued him in California ("playing hardball" - forcing him into a more expensive long-distance defense), making a specious argument that "because he knew DeCSS would harm industries based in California," that state has jurisdiction.

    The lower courts in California agreed. However, the quality of jurisprudence is fortunately a little higher in the California Supreme Court. They kicked it back. Now DVD-CCA will have to start over in another state (probably Texas, or potentially Illinois - where Pavlovich may have done some of the LiViD work while in school).

    The case is far from over, in fact, it's just getting started, and it's anybody's guess what will come of it. One hopes one of these will find its way to the USSC while there's still a few shreds of dignity left at that bench; in which case, the DMCA would get the treatment it deserves. But it would depend on many things...

    Specifically, with respect to the jurisdiction (which is an interesting, if academic, question), the California supremes held:

    The exercise of jurisdiction over a nonresident defendant comports with these Constitutions "if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ' "traditional notions of fair play and substantial justice."

    They go on to indicate their position:

    According to DVD CCA, California should exercise jurisdiction over Pavlovich because he should have known that third parties may use the misappropriated code to illegally copy movies on DVD's and that licensees of the misappropriated technology resided in California. In other words, DVD CCA is asking this court to exercise jurisdiction over a defendant because he should have known that his conduct may harm--not a California plaintiff--but industries associated with that plaintiff. As a practical matter, such a ruling makes foreseeability of harm the sole basis for jurisdiction in contravention of controlling United States Supreme Court precedent. (See Burger King, supra, 471 U.S. at p. 474.)

    Indeed, such a broad interpretation of the effects test would effectively eliminate the purposeful availment requirement in the intentional tort context for select plaintiffs.
    [emphasis theirs]

    Very simple, actually.

    I expect the DVD-CCA's attorneys to get their law on ghetto-style; that means every nasty trick they can think of to rack up costs and price Pavlovich out of the fight. Home-court advantage has a nice synergy, too.

    What I find interesting are the series of decisions supporting them which led up to this ruling. Perhaps one of the biggest weaknesses of the legal system is that there is no good way to handle bad judges once they get into the system.
  • by Thagg (9904) <thadbeier@gmail.com> on Tuesday November 26, 2002 @02:54AM (#4757057) Journal
    The ruling was 4-3 in favor of the defendant, which is as close as it can get -- and the majority went out of their way to show how narrowly this ruling should be interpreted.

    The defendant, Pavlovich, had several things in his favor. The DVD CCA, which brought the suit, claiming that Pavlovich should have known that they would be harmed, didn't even exist when the DeCSS code went up on Pavlovich's web site. The MPAA claims that they sent a 'cease and desist' letter to Pavlovich, but can't find a record of that, so the judges ignored it. And, the CA Supreme court majority recognizes that the DVD CCA could very easily try the case in Texas, so it's no real loss to them to do so.

    If any of those three conditions wouldn't have happened, this would likely have been tried in California. It was really really close.

    thad
  • by Euphonious Coward (189818) on Tuesday November 26, 2002 @03:09AM (#4757089)
    I read through the decision, and the dissent.

    Remarkably, the judges never mentioned any of the following key facts that should have completely changed the nature of the (original) proceedings:

    • The DeCSS was already posted on hundreds of web sites all over the world long before it was posted on the LiViD site. Posting it on the LiViD site cannot reasonably be claimed to have had any substantial effect on anybody, beyond minor convenience for LiViD developers.
    • Nobody has shown that the CSS was illegally reverse-engineered. It's specifically allowed to reverse-engineer in Norway despite any contractual agreement. In any case there was no contractual agreement, just a click-wrap button which there is no evidence anybody clicked. Once a trade secret is out, it's out, and anybody is free to use it. DVDCCA likes to pretend, and seems to have confused the judges into believing, that something illegal occurred in Norway. The worst anybody has come up with is that nobody knows (despite what Norwegian law says) what a Norwegian court would actually decide.
    • These judges insist that LiViD was "aimed at" the movie and electronic industries, despite that it has been explained that it was,rather, aimed at benefiting legitimate owners of DVDs, who have a Uniform Commercial Code right to watch the movie they have bought. That some movie or electronics companies might have been affected was of no interest to the LiViD project.
    • Nobody has shown that these companies have been affected in any way. Certainly lots of movies are being released on DVDs, and lots of DVD players are being sold.
    I don't know whether to chalk up these omissions by the judges to malfeasance or incompetence. (Might as well assume both.:-)
  • Play-by-play (Score:3, Insightful)

    by ActiveSX (301342) on Tuesday November 26, 2002 @03:10AM (#4757092) Homepage
    CA Supreme Court Saves LiViD, Pavlovich
    ahh, LiViD... DVD player, I think...

    The California Supreme Court has suprisingly ruled that Matthew Pavlovich is not within their jurisdiction
    sounds interesting

    in the DVD-CCA's
    boo, DVD-CCA

    suit against his posting of DeCSS
    whoot, DeCSS

    in relation to the development of the LiViD DVD player for open operating systems.
    Wait, does this mean...

    What's surprising? It's surprising that they held that his posting of DeCSS was not actionable...
    Yes, yes, I think it means...

    (however the use of the program by users to circumvent CSS could be under the DMCA)
    Fuck. Alright, nevermind. Back to whatever you kids do.
  • by Tuckdogg (550113) <jswhite.atty@gm[ ].com ['ail' in gap]> on Tuesday November 26, 2002 @03:12AM (#4757096) Homepage Journal
    This opinion really isn't very helpful. Others have pointed out that it only means the DVDCCA won't be able to sue in California, and that's correct so I'm not going to revisit the issue. However, there's a more important point that seems to be going unnoticed.

    The Court went out of their way to note that it's only the DVDCCA that's being effected by the ruling; something that quite rightly should be done when the ruling is premised upon personal jurisdiction. In addition to saying that the DVDCCA probably can sue (just not in California), the opinion also says (although not quite as directly) that the movie studios probably could sue in California. And they could get not only Pavlovich, but pretty much anybody that posts DeCSS.

    DVDCCA couldn't get jurisdiction because they couldn't prove that Pavlovich knew (or should have known) his actions might: 1.)hurt them, and 2.)hurt them in California. This is certainly right, as the DVDCCA didn't even exist as an entity when Pavlovich posted the code and they were never able to show that prior to the suit he had any idea where they were based. However, major movie studios in Hollywood did exist, and I doubt the Court would be willing to accept the notion that Pavlovich didn't know that Hollywood studios just happened to be located in Hollywood, CA. Had the plaintiff in the suit been a major studio (like Universal or Disney), you can bet the decision would have been the other way around.
  • Quick summary (Score:5, Interesting)

    by deblau (68023) <slashdot.25.flickboy@spamgourmet.com> on Tuesday November 26, 2002 @03:20AM (#4757120) Journal
    For those who don't want to read the whole thing.

    Case history:

    • DVD CCA (Delaware corp w/HQ in CA) sues Matthew Pavlovich (individual in Iowa) for "misappropriating trade secrets" (DeCSS), and posting them on the LiVid website, seeking an injunction.
    • MP files a motion contending CA has no jurisdiction.
    • Appeals court overturns, and eventually gives a statement why the trial court should have jurisdiction.
    • (This decision) CA Supreme Court decides the trial court doesn't have jurisdiction after all.
    Summary of decision:
    • CA may exercise personal jurisdiction "if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ' "traditional notions of fair play and substantial justice" ' ".
    • The "minimum contacts" test must be administered on a case-by-case basis -- it's not mechanical.
    • There are three tests by which a court may exercise specific jurisdiction over a nonresident:
      1. the defendant purposefully availed of forum (CA) benefits;
      2. the controversy is related to the defendant's contacts with the forum;
      3. the assertion of jurisdiction comports with "fair play and substantial justice"
    • It's not enough to show defendant knew his actions would cause harm in CA. Plaintiff has to establish that CA bears the brunt of the harm. There are several pages showing they don't.
    • Pavlovich posted on a "Web site accessable to any person with Internet access. Pavlovich never worked in CA. He owned no property in CA, maintained no bank accounts in CA, and had no telephone listings in CA. Neither MP nor his company solicited or transacted any business in CA. The record also contains no evidence of any LiVid contacts with CA." The site was links only, no interactive features. There's no evidence that anyone in CA even visited. One interesting argument: he couldn't have known he'd be harming plaintiffs in CA since the DVD CCA were formed two months after the links went up.
    • DVD CCA claims CA has jurisdiction because "he should have known that third parties may use the misappropriated code to illegally copy movies on DVDs and that licensees of the misappropriated technology resided in CA". [emphasis orig] Accepting this argument would lead to a ruling "in contravention of controlling US Supreme Court precedent". It would give CA jurisdiction over far too many tort cases.
    • Nevertheless, "DVD CCA has the ability and resources to pursue Pavlovich in another forum such as Indiana or Texas. Our decision today does not foreclose it from doing so. Pavlovich may still face the music -- just not in CA."
    Justices Brown, Kennard, Werdegar, and Moreno voted to overturn, Justices Baxter, George, and Chin dissented.

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