CA Supreme Court Saves LiViD, Pavlovich 251
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)."
This is excellent news (Score:3, Insightful)
This is another important step on the long road to overturning the DMCA.
Not Actionable? (Score:4, Insightful)
Microsoft has a Monopoly because of such rulings (Score:5, Insightful)
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.
CSS plug-in (Score:2, Insightful)
Re:What about Canada here? (Score:5, Insightful)
Moot? (Score:5, Insightful)
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.
This is just barely a win -- a technicality (Score:5, Insightful)
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.
Re:DeCSS is Dead (Score:4, Insightful)
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.
Re:This is excellent news (Score:5, Insightful)
Re:Legally? (Score:3, Insightful)
My point is I paid for a DVD drive. I also paid to watch a movie unlimited times (hence the purchase of a DVD movie on a disc). However I am restricted at watching the movie legally, because I use an open source Operating System. With copy protection, we are slowly losing our rights as a group of consumers, for the interests of the movie industry that claims they have lost money. But their estimated profits for the year are just that, estimates. Piracy has been a blamed since the invention of video tape (in terms of video) for the industry not achieving these estimated figures.
Re:Moot? (Score:3, Insightful)
They want to scare the people who might crack the code, of course I think userfriendly explained it the best [userfriendly.org].
Re:This is just barely a win -- a technicality (Score:5, Insightful)
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.
Re:He's still a criminal (Score:3, Insightful)
Civil Disobediance is rapidy becoming a moot point.
Re:This is excellent news (Score:1, Insightful)
Re:Not Actionable? (Score:4, Insightful)
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
Wall Street and the DMCA (Score:2, Insightful)
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.
Re:What about Canada here? (Score:5, Insightful)
Re:Why in california court? (Score:3, Insightful)
Technically Correct Verdict (Score:3, Insightful)
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.
Re:What about Canada here? (Score:5, Insightful)
You always have to weight the consequences with how strongly you feel.
What if kissing was illegal? Or dancing? You know in your heart it's not wrong to do either of those things. Would you risk kissing or dancing because you felt it was your right; because you wanted to make a statement?
Re:This is excellent news (Score:1, Insightful)
Of real interest was the dissenting opinion. The dissenting judge not only thought that Pavlovich's knowledge that movies are associated with California was reason enough to have the suit tried in California, he mentions "open source" supporters disparagingly. More interestingly, in page 7 of that dissenting opinion (page 28 of the entire opinion), the judge expresses amazement that Pavlovich insists that anyone who buys a DVD has the right to make a backup copy for personal use. Is "fair use" dead?
If you aren't using it to steal movies... (Score:3, Insightful)
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.
Re:Microsoft has a Monopoly because of such ruling (Score:3, Insightful)
Re:Microsoft has a Monopoly because of such ruling (Score:3, Insightful)
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.
What They Didn't Say (Score:4, Insightful)
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)
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.
Don't celebrate yet... (Score:4, Insightful)
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.
Re:This is excellent news (Score:4, Insightful)
> > 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.
Re:What about Canada here? (Score:5, Insightful)
Yeah, but don't forget what the penalties are on the DMCA, up fo $500,000 and 5 years in jail, or $1 Million and 10 years in jail if you get hit a second time.
You're almost better off killing someone in protest.
-
Re:If you aren't using it to steal movies... (Score:5, Insightful)
Calling copyright violations theft _is_ a wordgame. Illegally copying a movie or music is not theft. It is a copyright violation. A copyright violation is a violation of an exclusive right of a state granted temporary monopoly. It is not depriving someone of their property.
The ??AA's want you to think it's theft. They want you to think it's their real property. They want these terms for two things; to scare people away from illegally copying of copyrighted materials and (which is far worse) to indoctrinate the public and new generations into believing that IP is real property on equal footing with physical property. Because if people think it's real physical property then it's much easier to garner support against any proposals to reduce the length of copyright. After all, it's easier to argue against a government seizing their property than to argue against the government reducing their monopoly.
Dont call it theft. Dont call it property. Copyright violations are copy right violations, not theft.
(I certainly agree that there is no moral highground in copy right violations either, but there is a moral highground in arguing for the reduction of state granted monopoly time as opposed to arguing for seizing property after a certain time.)
Civil Disobedience (Score:5, Insightful)
Even more than that. Civil disobedience means that you explicitly break a law that you consider wrong, and do so in public or with a maximum of publicity and turn yourself in. The point is you want everyone to know that you broke the law because you consider it wrong, because you want it changed. This means you are ready to accept any actions (prison, etc.) on the authorities part.
Read some books about Gandhi [amazon.com] to understand how the principle works.
Re:If you aren't using it to steal movies... (Score:3, Insightful)
Possibly they have lost the potential to sell. It's just as possible that they may gain a sale if someone has seen or heard something from a P2P system. Or if someone can play DVDs on their Linux box.
Should negative reviews be banned, because they might lose someone the "potential to sell". This kind of claim is not unlike someone claiming they have the "right" to sales or to make a profit...
Re:If you aren't using it to steal movies... (Score:3, Insightful)
Yes, it is a wordgame. Yes, it is more technically copyright violation. But yes, it is also theft.
Re:If you aren't using it to steal movies... (Score:5, Insightful)
If you copy, you _may_ be denying them income attributed to their government granted temporary monopoly, if you had planned on purchasing that item rather than copying it. Since the very income they are counting on from _you_ depends entirely on _your_ intent, it becomes an impossible construct. They are not prevented from selling it to someone else just because you committed a copyright violation (they may be if you mass-distribute it, which is why, while still not theft, that is even more frowned upon in law tho).
It is technically a copyright violation. A copyright violation and nothing else. Not theft, not murder, not piracy, nor arson. It may have factors in common with any and all of them, but it is _not_ any of them.
It is a violation of a government granted exclusive monopoly, granted for a limited time to promote creativity, it is not depriving someone of property, not even property they would otherwise have obtained.
A violation is a copyright violation, period.
Re:If you aren't using it to steal movies... (Score:3, Insightful)
The market does work that way. If I own something, I am entitled to set a price for it, and therefore my level of profit. Whether or not anyone actually buys it is immaterial to this section of the process. If I want a profit of one dollar per item, I may set that price; I may also demand a profit of one million dollars per item. Will you buy it? Will he? Will she? It depends on what value the buyer associates with the product. Generally speaking, if I am the only source of a given product, and it's not critical to someone's survival (food, water, medicine, etc), my pricing decisions are completely legal.