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DeCSS Loses Free Speech Shield 613

Posted by simoniker
from the might-have-left-it-on-train dept.
JohnGrahamCumming writes "BusinessWeek/CNET is reporting that the California Supreme Court has ruled that 'a Web publisher could be barred from posting DVD-copying code online without infringing on his free speech rights.' They also say that 'the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case.'" According to the article, this "...overturned an earlier decision that said blocking Web publishers from posting the controversial piece of software called DeCSS, which can be used to help decrypt and copy DVDs, would violate their First Amendment rights."
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DeCSS Loses Free Speech Shield

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  • by Euphonious Coward (189818) on Monday August 25, 2003 @04:32PM (#6787285)
    The original decision was based on a biased assumption that the original reverse-engineering and publication were illegal in Norway. At last report the Norwegian court had rejected that assertion. Norwegian law specifically forbids anti-reverse-engineering clauses in contracts. The confused or arm-twisted Norwegian prosecutors said they meant to ask for a re-trial. I haven't seen any news about results of that re-trial, if any.

    The "knew or should have known" test should not have been applied to the original trade-secret violation case. It appears that not even Norway's prosecutor "knows", and its court certainly thinks not. How would some kid who's never been there be expected to "know"? The only outcome that would not embarrass California's courts any further would be to decide that there was no remaining trade secret at the time of the original filing.

    • by anthonyrcalgary (622205) on Monday August 25, 2003 @04:50PM (#6787533)
      It doesn't matter. The DeCSS code is everywhere now.

      But the implications are worrying.
      • by Squareball (523165) on Monday August 25, 2003 @05:30PM (#6788002)
        True, but I wonder, what would happen if the code was split up into say 3 sections. Is a web publisher allowed to publish "some" of the code? Since part of the code doesn't work all by it's self. So then some people publish part 1, others part 2, and others part 3. Do a google search and get all 3 parts, cut and paste, and bam, you have DeCSS now. I wonder how they could stop that on legal grounds. but IANAL of course :)
        • How about only two parts?

          As I understand the code (since last looking at it) there was some code, and some tables. If the data tables were stored on one site, and the code itself on another, is it complete enough to be in violation?

          How about two different files on the same site?

    • by EinarH (583836) on Monday August 25, 2003 @04:55PM (#6787600) Journal
      The norwegian economical crime unit appealed the case. The case is scheduled to be raised again in a new court in December.
      But they might decide to drop the whole case because the possibility for failure.

      The case will anyway only (in Norway) be off historical interest since Norway anyway probably will addopt the new Infosoc directive from EU planned to take affect from January 2004.

      But the way it is today, Johansen is not sentenced for anything and per se not guilty according to Norwegian laws.

    • Basically, the CA Supreme Court said that the Court of Appeals should have considered whether the basis for granting the original injunction was sound. The Court of Appeals said, even assuming it's sound, it's a prior restraint under the First Amendment.

      This is still bad news for the DVDCCA becuase their trade secret is no more. In the dissent, one CA Justice was ready to declare it then and there. The majority of justices thought it better to let the Court of Appeals make that determination. It is appeala
      • by David Hume (200499) on Monday August 25, 2003 @06:54PM (#6788847) Homepage

        The opinion says that this is a narrow decision.


        You can read the PDF version of the California Supreme Court [ca.gov] decision at: DVD Copy Control Association, Inc. v. Andrew Bunner [ca.gov].

        The opinion is neatly summarized in its first paragraph:

        "Today we resolve an apparent conflict between California's trade secret law (Civ. Code, [sec.] 3426 et seq.) and the free speech clauses of the United States and

        California Constitutions. In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to know that the secrets were acquired by improper means. The trial court found that the operator misappropriated these trade secrets in violation of section 3426.1 and issued a preliminary injunction pursuant to section 3426.2, subdivision (a), prohibiting the operator from disclosing these secrets. Accepting as true the trial court's findings, we now consider whether this preliminary injunction violates the First Amendment of the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. We conclude it does not."


        Prof. Eugene Volokh [ucla.edu] of UCLA Law School [ucla.edu]and the Volokh Conspiracy [volokh.com] has some comments [volokh.com].

    • by Anonymous Coward
      Eat This:

      #!/usr/bin/perl -w
      # 531-byte qrpff-fast, Keith Winstein and Marc Horowitz
      # MPEG 2 PS VOB file on stdin -> descrambled output on stdout
      # arguments: title key bytes in least to most-significant order
      $_='while(read+STDIN,$_,2048){$a=29;$b=73; $ c=142;$ t=255;@t=map{$_%16or$t^=$c^=(
      $m=(11,10,116,100,1 1,122,20,100)[$_/16%8])$t^=(72, @z=(64,72,$a^=12*($_%16
      -2?0:$m&17)),$b^=$_%64?12 :0,@z)[$_%8]}(16..271);if ((@a=unx"C*",$_)[20]&48){$h
      =5;$_=unxb24,join"",@ b=map{xB8,unxb8,chr($_^$a[--$ h+84])
  • The solution (Score:5, Insightful)

    by captainclever (568610) <rj@@@audioscrobbler...com> on Monday August 25, 2003 @04:32PM (#6787291) Homepage
    Don't host it on a website.. in the US.

    There are plenty of other countries that don't have such a crazy legal system.
    • Re:The solution (Score:3, Informative)

      by Jason1729 (561790)
      Even if you host it on a website outside the US, you are still legally responsible and well within reach of the US authorities. Sure it might make it harder to link the site to you, but once the link is made, the fact that it's hosted offshore won't provide any legal defense.

      Jason
      ProfQuotes [profquotes.com]
    • Re:The solution (Score:5, Interesting)

      by MunchMunch (670504) on Monday August 25, 2003 @04:55PM (#6787594) Homepage
      "Don't host it on a website.. in the US. There are plenty of other countries that don't have such a crazy legal system."

      That's not so much a 'solution' as a 'quick-fix.'

      For how long will it work? Really, with the EU and the WIPO both following the disturbing trends in the US, its not very likely that safe havens from the current American copyright regime will exist for long.

      On the contrary, when the issue is lost here, at least in the current international climate, the world has no choice but to listen--and the being complacent and hosting on outside servers instead of fighting it simply gives these absurd copyright laws more time to become 'written in stone' so to speak in US law. Remember Eldred v Ashcroft? During oral arguments, the soon-to-be majority opinion Justices kept bringing up the question, as though it were a justification, of "why haven't copyright extensions been challenged before?" The longer these laws stay on the books, the harder its going to be to find respite from them in any country.

    • Haven't you heard (Score:4, Insightful)

      by Archfeld (6757) * <treboreel@live.com> on Monday August 25, 2003 @07:34PM (#6789253) Journal
      The US only pays attention to national borders when it is ours. Otherwise even if what you do is legal where you are, if it violates our laws we will try and enforce it....Makes me sad to be an American sometimes. I just love how we can prosecute foriegn nationals for violating US laws outside the US, but deny them the inherent protection of the US system...
      Welcome to the United States of Hypocrisy, a subsidiary of King George Inc.
      "Looking out for their own interests at our expense since the day they were "elected" - Bush and company."

  • by Glyndwr (217857) on Monday August 25, 2003 @04:34PM (#6787310) Homepage Journal
    ... so here's a "from the gut" reaction.

    Ah, shit.

    Sometimes, the continued reporting of how our rights as consumers are being eroded makes me want to put slashdot in my barred hosts file. And then move to a cave. I'm sick of this crap, I really am.
    • by ichimunki (194887) on Monday August 25, 2003 @04:39PM (#6787375)
      rights as consumers

      I don't know about you but I'm a citizen not a consumer. I do stuff like vote and pay taxes... although I have to wonder why I bother with the former and if there are any good ways to avoid the latter. Got room in that cave?
    • Sometimes, the continued reporting of how our rights as consumers are being eroded makes me want to put slashdot in my barred hosts file. And then move to a cave.

      That would be a cave with a broadband connection, right? I mean... for a second there, I thought you were going a little too far.

    • by panck (69848) on Monday August 25, 2003 @05:54PM (#6788246)
      "An opinion without action is useless."

      I was listening to some NPR thing about Martin Luther King Jr. this morning, and I remember that quote. I don't know who said it, but it's true.

      It's one thing to be "sick of this crap", but unless you vote, and/or give money to a political candidate, it doesn't matter.

      Money right now, while the candidates are trying to get the nomination is especially important. More people who can hear your candidate's message are more people who will vote for him. In that sense, money translates to many many more votes than your 1 vote.

      Bush, et al know this, and they are milking all those wealthy supports who can fork out $2000 a plate.

      Personally, I am supporting Howard Dean [deanforamerica.com] for president.

      Make your own opinions about the candidates, but again

      DON'T JUST SIT THERE, VOTE AND GIVE MONEY

      (Not to say the poster isn't being active about his opinion, I'm just reminding others who may not be)
  • Still a shot (Score:5, Informative)

    by Anonymous Coward on Monday August 25, 2003 @04:34PM (#6787311)
    Notice that the decision is based on the code being a trade secret. The lower appeals court can still decide that the code is not a trade secret, and it could still be published
  • by smd4985 (203677) on Monday August 25, 2003 @04:34PM (#6787313) Homepage
    i find this decision surprising, but from an article on CNET an EFF attorney indicates that this wasn't a total loss. the court ruled that the revelation of trade secrets is not protected speech, though it isn't clear if DeCSS is a trade secret (because it is so widespread). nevertheless, the ruling sets a bad precedent, and i'm sure the supreme court will be appealed to.
    • I've developed something, and no one knows what it is. You, through some nefarious means, maybe breaking into my office, manage to learn my trade secret. Free speech does not give you the right to publish it. What's wrong with that?

      The problem isn't that trade secrets were ruled protected, the problem is that DeCSS was ever considered a trade secret in the first place.
      • I've developed something, and no one knows what it is. You, through some nefarious means, maybe breaking into my office, manage to learn my trade secret. Free speech does not give you the right to publish it. What's wrong with that?

        Absolutely nothing. But what does this have to do with this case?

        Your analogy is not apropos. The author of DeCSS did not break into anything, nor steal anything, nor copy anything. He did a bit of clever reverse-engineering, nothing more.

        Now, could this still constitute revea

  • T-Shirts (Score:5, Funny)

    by N8F8 (4562) on Monday August 25, 2003 @04:34PM (#6787315)
    Dows this mean they have to stop selling the t-shirts too?
    • Don't forget outlawing a particular prime number, and stopping people from singing along to the DeCSS songs, and keeping people from distributing a gif of the mona lisa with the code padded into it.
      • Re:T-Shirts (Score:3, Insightful)

        by Alan (347)
        I'm still a bit unsure as how allowing me to watch DVDs under Linux is destroying the rights of the consumers and no doubt, the economy of the western world.

        I'm still going to wear my shirt though.
  • Mr. Cox (Score:3, Funny)

    by Eberlin (570874) on Monday August 25, 2003 @04:35PM (#6787318) Homepage
    Mr. Cox...come on over to California for your MBA.

    Does this mean that DeCSS isn't protected under "fair use" either? Bastages.
  • by sdriver (126467) on Monday August 25, 2003 @04:35PM (#6787323) Homepage
    Maybe it's good reason all the tech jobs are going overseas. At least in India/Russia they have the freedom to post security related software without going to jail...
  • by Abcd1234 (188840) on Monday August 25, 2003 @04:37PM (#6787352) Homepage
    What does that mean? Correct me if I'm wrong, but last I checked, there's no such thing as "trade secret rights". Trade secrets are secret because you keep them secret (via NDA or whatever). Once they escape, they're public knowledge, end of story. I wonder how long it'll take before trade secrets are lumped together with patents, copyrights, and trademarks as "IP". *sigh*
    • by Sanity (1431) * on Monday August 25, 2003 @04:44PM (#6787458) Homepage Journal
      Once they escape, they're public knowledge, end of story.
      IANAL, but IIRC the law still tries to put the toothpaste back in the tube if the original disclosure was a breach of trade-secret law (such as a violation of an NDA or license agreement), no matter how widely that toothpaste has been spread around.

      For this reason trade secret law is, in many ways, much more powerful (and restrictive to the general population) than copyright.

      • but how are they going to say that it was disclosed via an NDA or licesense agreement when it wasn't?

        The encryption was broken because of the stupidity of a particular company. One key was found because of the stupidity and the rest were figured out because of the low-strength of the keys. (40 bit?)
    • by mcc (14761) <amcclure@purdue.edu> on Monday August 25, 2003 @05:25PM (#6787934) Homepage
      Trade secret controls are a privilegde.

      Free speech is a right.

      The privilidge of controlling trade secrets is granted to businesses by acts of government legislatures.

      The right of freedom of speech is innate, universal, and to inaliable to every member of the human race. It also happens to be among the rights that the architects of the government of the united states decided needed to be explicitly enumerated in the government's charter as something that government legislatures are explicitly reminded they are not allowed to impinge in their actions.

      Innate human rights take precedence over government-granted privilidges. Always. And among the functions of the courts in the United States is the task of ensuring that, when a government legislature attempts to put into law a limit on a universal human right despite.having no right or authority to do so, the law which creates the limitation is declared invalid and removed from the body of law of the land. For the moment, the California Supreme Court has failed in their duty.

      This rant brought to you by Captain Obvious(TM)
  • by Josh Booth (588074) <joshbooth2000&yahoo,com> on Monday August 25, 2003 @04:37PM (#6787357)
    ...[DeCSS] could more broadly be used in the process of decrypting and copying DVDs.

    That's balogna, and everyone on Slashdot knows it. Just because the orginization is called the DVD Copy Control Association doesn't mean that the encryption used has anything to do with copying the DVDs. I can easily and full "cp /dev/dvd ~/copied-dvd.iso" without DeCSS. But you need DeCSS to access the content, which has nothing to do with copying (well, permenantly), only playing.

    • by IthnkImParanoid (410494) on Monday August 25, 2003 @04:52PM (#6787561)
      To put it in simpler terms, I can copy coded/Chinese text by hand without ever knowing what it says. DeCSS is a codebook or Chinese-English dictionary. Dictionaries don't help you copy stuff.
    • by Experiment 626 (698257) on Monday August 25, 2003 @07:33PM (#6789245)
      But you need DeCSS to access the content, which has nothing to do with copying (well, permenantly), only playing.

      I'm glad someone else caught this. It's a bit disturbing when even the Slashdot posting describes DeCSS as "DVD-copying code". DeCSS would not be necessary to make exact copies, and while it could be useful for other types of copies (like downsampling), its main use is not for copying, but playback.

      Obviously, this is not the way the RIAA wants people to think of DeCSS. It's much harder to demonize a DVD playing program than some kind of copying tool used by Nasty Evil Pirates. The fact that when DeCSS is mentioned the latter comes to mind, even for a Slashdot poster or tech journalist shows just how effective the RIAA's propaganda really is.

      To win this battle, it has to be recast not as a fight for our right to bootleg movies, but put the focus on the legitimate questions that have nothing to do with copying anything.

      • How ARE users of Linux and other non-MS operating systems supposed to watch the movies they've paid for?
      • How common-knowledge can a process be and still enjoy "trade secret" legal status?
      • What gives the RIAA the right to effectively right their own international import/export laws through some ridiculous region encoding scheme and giving them the force of real laws?
      • Does (and should) watching a DVD you legitimately bought and own from Japan or England in the United States make you a criminal?
  • It's not "copying" (Score:5, Insightful)

    by richieb (3277) <richiebNO@SPAMgmail.com> on Monday August 25, 2003 @04:37PM (#6787360) Homepage Journal
    First of all DeCSS does not copy anything - it simply descrypts the data. Unless you want to take the position that anytime you read data from a DVD you actually copy it...

    Anyway, what kind of trade secret is it, if everybody knows it?

    • by kiltedtaco (213773) on Monday August 25, 2003 @04:49PM (#6787518) Homepage
      Look, I know it, you know it, we all know what the MPAA doesn't like about DeCSS. It's not disc to disc copying, it's converting from dvd to something more easily transmited over the net. Divx.

      You can argue about how DeCSS doesn't copy anything, but you all know it, DeCSS is used for ripping dvd's to vcd's and divx. We can keep living in la la land and pretend that DeCSS is perfectly ledgitimate, but it really isn't.

      That doesn't mean I support the decision by the courts, I think code is speech too. It's just that i'm not willing to keep beliving in my argument just because the other side doesn't have the wording *exactly* right.
  • Laws laws laws. (Score:5, Interesting)

    by blitzoid (618964) on Monday August 25, 2003 @04:39PM (#6787374) Homepage
    See, that's why I just ignore laws like that. I bought the DVD. It's mine. I own it. If I want to crack the copy protection, it's my choice. Since, you know, I own it and all. If I wanna take a razor and scratch up the surface, it's my choice. Since, you know, I own it and all.

    I really don't understand how it came to be that if you buy something it's still not yours.

    Then again, I live in canada so that DeCSS ruling probably doesn't effect me... yet.
  • by llamalicious (448215) on Monday August 25, 2003 @04:39PM (#6787377) Journal
    Hmm, feel free to add here folks, I'm going to post a meta comment for this one (you know they're coming)
    • I should be able to say/print whatever I want! I am teh 1337!
    • The US and all it's USians are heading towards a nihilistic semi-fascist state!
    • DeCSS only breaks something that wasn't secure in the first place, who cares!
    • Six posts of people willing to host mirrors of DeCSS code
    • 4 geeks are going to comment on their DeCSS Perl t-shirts!
    • One militant troll is going to suggest we bomb MPAA headquarters
    • Someone's going to post DeCSS here on /. to see if they can get the comment removed.
    • 3 or 4 trolls who have no idea what DeCSS is are going to ask anyone if they know how to disable regions on their DVD player
    • Requisite flames will be posted telling the posters from the last bullet to STFU and RTFA. Or something.
    • One or two GNAA trolls (seem to be a dying breed, yay)
    • One page widening troll (oh wait, he hasn't shown up lately)
    Correct me, mod me, flame me, whip me, beat me. It's all good, you just aren't that important. Should you post something funny/insightful, I might give a shit. :)
  • by chill (34294) on Monday August 25, 2003 @04:39PM (#6787378) Journal
    Of course, all those pirate DVDs that are printed en masse in places like China, New York and LA are going to be put right out of business.

    Heaven forbid people pump the video from a DVD component output into a capture card and make a DiVX copy that is smaller, almost as good and without copy protection.

    IMHO, DeCSS was litigated not because it allowed copying/viewing of DVDs but because it was a major embarrassment to the industry. Their best and brightest were humbled by a kid from Norway. Oh the shame!

    DeCSS was written for, and mainly used for, watching legally purchased DVDs on Linux computers. Was the DVD industry ever able to come up with examples of DeCSS being used to pirate DVDs? There are probably more pirate DVDs stamped in China in one day that were EVER made with DeCSS.

    Loss of face. A shame the idiots in charge just didn't commit suicide and get it over with.
  • Hypocritical (Score:5, Insightful)

    by Prizm (52977) on Monday August 25, 2003 @04:39PM (#6787379)
    Why is it that we can post the directions for how to properly murder someone or build a bomb (In fact, this seems to be the topic of most movies made today), yet we are barred from posting DVD-copying code?

    Can a case be made that posting DVD-copying code and directions on a website makes people more likely to copy DVDs, while there is no correlation to how many people are more likely to build a bomb or murder someone after reading the directions online?
    • by Xeth (614132)
      Because murder/terrorism don't directly affect the level of control that the media conglomerates have.

      Sad answer to the rhetorical question...

  • "Outranked"? (Score:5, Interesting)

    by badasscat (563442) <basscadet75.yahoo@com> on Monday August 25, 2003 @04:40PM (#6787388)
    the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case.'"

    If this is in fact what they said, it'll never hold up. Freedom of speech is the First Amendment to the US Constitution (for those of you who don't live here). It cannot be "outranked" by property and trade secrets rights. No state or federal law can "outrank" the Constitution of the United States.

    The article may have misinterpreted the decision, but if that indeed was the decision, it will be overturned.
    • Re:"Outranked"? (Score:5, Insightful)

      by Henry V .009 (518000) on Monday August 25, 2003 @04:51PM (#6787543) Journal
      It seems likely that the article misinterpreted the decision. The first line gives a more probable interpretation of what the Court actually said (which is in line with the first decision on this):
      The California Supreme Court ruled Monday that a Web publisher could be barred from posting DVD-copying code online without infringing on his free speech rights.
      It seems to me that the Courst felt that free speech was not at issue. The article quotes the court:
      "Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry's efforts to limit unauthorized copying of movies on DVDs," the court wrote. "We do not see how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA's trade secrets."
      So the Court is creating a distinction between speech and 'information.' And it is saying that government can regulate 'information' to the hilt. This is defining the concept of speech down rather than putting trade secret law over free speech. I still hope that SCOTUS slams them hard on this one.
  • illegal prime (Score:5, Informative)

    by SHEENmaster (581283) <travis@utk.eNETBSDdu minus bsd> on Monday August 25, 2003 @04:40PM (#6787389) Homepage Journal
    4
    8565078965 7397829309 8418946942 8613770744 2087351357
    9240196520 7366869851 3401047237 4469687974 3992611751
    0973777701 0274475280 4905883138 4037549709 9879096539
    5522701171 2157025974 6669932402 2683459661 9606034851
    7424977358 4685188556 7457025712 5474999648 2194184655
    7100841190 8625971694 7970799152 0048667099 7592359606
    1320725973 7979936188 6063169144 7358830024 5336972781
    8139147979 5551339994 9394882899 8469178361 0018259789
    0103160196 1835034344 8956870538 4520853804 5842415654
    8248893338 0474758711 2833959896 8522325446 0840897111
    9771276941 2079586244 0547161321 0050064598 2017696177
    1809478113 6220027234 4827224932 3259547234 6880029277
    7649790614 8129840428 3457201463 4896854716 9082354737
    8356619721 8622496943 1622716663 9390554302 4156473292
    4855248991 2257394665 4862714048 2117138124 3882177176
    0298412552 4464744505 5834628144 8833563190 2725319590
    4392838737 6407391689 1257924055 0156208897 8716337599
    9107887084 9081590975 4801928576 8451988596 3053238234
    9055809203 2999603234 4711407760 1984716353 1161713078
    5760848622 3637028357 0104961259 5681846785 9653331007
    7017991614 6744725492 7283348691 6000647585 9174627812
    1269007351 8309241530 1063028932 9566584366 2000800476
    7789679843 8209079761 9859493646 3093805863 3672146969
    5975027968 7712057249 9666698056 1453382074 1203159337
    7030994915 2746918356 5937621022 2006812679 8273445760
    9380203044 7912277498 0917955938 3871210005 8876668925
    8448700470 7725524970 6044465212 7130404321 1826101035
    9118647666 2963858495 0874484973 7347686142 0880529443

    extract it with:

    #!/usr/bin/perl
    use LWP::Simple;
    use Math::BigInt;
    my $html = get("http://www.utm.edu/research/primes/curios/485 65...29443.html");
    my($prime) = $html =~ m{
    ([^};

    $prime =~ s{\D+}{};
    $prime = Math::BigInt->new($prime);
    my $binary = '';
    while ($prime > 0) {
    $binary = pack("N", ($prime % 2**32)) . $binary;
    $prime /= 2**32;
    }
    $binary =~ s{^\0+}{};
    open(my $fh, "| gunzip -c 2>/dev/null") or die "cannot gunzip, $!";
    print $fh $binary;
    close $fh;
    • by Anonymous Coward on Monday August 25, 2003 @04:47PM (#6787493)
      extract it with:

      #!/usr/bin/perl


      Anyone else see the irony in using Perl to make something less obfuscated? :o)
    • you're in some kind of trouble now.
      This number was patented I believe.

  • by BrynM (217883) * on Monday August 25, 2003 @04:40PM (#6787392) Homepage Journal
    "property and trade secrets rights outranked free speech rights in this case, because the DVD code was never meant to be public."
    And the watergate tapes were never meant to be public. Neither was that Lawinski blowjob. Or the problems Pintos had with rear impacts. Or the harmful effects of tobacco. Or the methamphedamine formula. Or the LSD formula. etc. etc. etc.

    This doesn't change the fact that the DVD code became public and now is. Being that manufacturers provided discs with the DVD code on them to the public for a small fee, I don't see how it could have been avoided.

  • by worst_name_ever (633374) on Monday August 25, 2003 @04:41PM (#6787410)
    ...the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case...

    Right, because you know, since property and trade secrets rights are guaranteed in the Zeroth Amendment to the Bill Of Rights, they outrank the First Amendment, don't they?

    • Re:Which came first? (Score:3, Informative)

      by toxic666 (529648)
      You are correct, they are not guaranteed by an amednment, but in the original text.

      United States Constitution, Article I, Section 8:

      Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
    • Re:Which came first? (Score:3, Interesting)

      by jdavidb (449077)

      Perhaps the first amendment repealed that section of the Constitution.

  • In other words... (Score:5, Insightful)

    by Sanity (1431) * on Monday August 25, 2003 @04:41PM (#6787419) Homepage Journal
    The movie industry's right to prevent fair use of DVDs outranks our right to know when we are being sold flawed cryptography?

    CSS does not prevent people from copying CDs illegally, what it does prevent is perfectly legal uses of DVDs such as playing them in countries other than that in which they were sold, and playing them on operating systems for which CSS decoders might not exist. Now our government wants to compromize the 1st amendment to defend their right to stop us from doing something that our laws specifically entitle us to do?

    All laws which seek to limit two or more people's ability to willingly share ideas and information will ultimately be seen as being just as rediculous as witch burning or the Spanish Inquisition. Our right to effectively regulate our governments, which requires that we have free and open access to knowledge, ideas, and information, is being sold off based on the wrong-headed dogma that treating everything as "property" will improve efficiency.

    Having said all that, I think we should welcome this ruling - since it is perhaps one of the clearest examples of how the 1st Amendment is being corroded by laws which increasingly serve only to stifle innovation and prop up monopolies to the detriment of science and the useful arts.

  • by An'Desha Danin (666568) on Monday August 25, 2003 @04:41PM (#6787420) Homepage
    '...the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case.'

    Funny, I wasn't aware that propety and trade secrets rights were in the Constitution.

  • Meant to be public? (Score:4, Interesting)

    by dachshund (300733) on Monday August 25, 2003 @04:41PM (#6787422)
    the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case, because the DVD code was never meant to be public

    If I'm not mistaken, this code wasn't stolen, it was reengineered from scratch, wasn't it? If that's the case, what does it matter if the code was "meant to be" public? It became public the minute its author wrote it. Is the court really saying that the manufacturer's intent bars me from writing original descriptions of a product?

    PS I realize that this may be an issue of the code containing "stolen" trade secrets such as keys. If this is the case, would the decision still apply to a truly "clean-room" version of DeCSS?

  • by MightyTribble (126109) on Monday August 25, 2003 @04:43PM (#6787442)

    This lawsuit was specious. DeCSS had/has nothing to do with illegal DVD duplication as described by the plantiffs - the DVD pirates of Asia don't use it, and never had. They didn't need to.

    All it's done is solidify a bad law and provide PR for the DVDCCA and MPAA. Large scale movie piracy will continue, untouched by this ruling, in factories all over China, Russia and Vietnam.

    But US citizens will now be unable to exercise reasonable fair-use on DVDs they own.

    This is *fantastic* news. Sure, in the short-term it looks bad, but in a few years time the consumer backlash will be a sight to behold. It'll happen, once Joe Sixpack realises he has to buy a seperate copy of "American Wedding III" for each media player he wants to watch it on.
  • by Migraineman (632203) on Monday August 25, 2003 @04:45PM (#6787462)
    From the article -
    Under the previous ruling, a disgruntled employee might be able to post a company's proprietary code online and claim free speech rights, for example.

    Forgive me for being naive, but this incident is already covered by Copyright Infringement laws. No need to bring Free Speech into the picture.

    This judgement leads us down a slippery slope to a point where any form of reverse engineering is illegal - just claim "trade secret rights" (whatever those are.)
  • by 4of12 (97621) on Monday August 25, 2003 @04:50PM (#6787538) Homepage Journal

    Now that there is another trump suit over the right to free speech (I guess that "national security", "libel", "slander" and no "Fire! in a crowded theatre are additional reasons), I have to wonder whether there will be cases where free speech is suppressed for less than reasonable cause.

    For example, the Co$ has maintained that certain of its documents are trade-secrets.

    Corporations could shield a great deal of signficant information under the guise of trade-secrets, such as advice that Enron executives gave to VP Cheney concering energy policy (the US federal government has already dismissed attempts to release those conversation under the FoIA).

    Judges pretty much try to interpret law. What this ruling indicates is the need for legislative review, debate, and possible modification of the law:

    what are the real costs, benefits, and side effects of various IP protection laws and who do they effect?

    If IP is taken to an extreme, there will be issues cropping up where information, as coded in genetic expressions, will become someone's intellectual property and "reading" it by overcoming some supposed obstacle would be a crime.

  • My criticisms (Score:5, Insightful)

    by Zork the Almighty (599344) on Monday August 25, 2003 @04:57PM (#6787616) Journal
    In Monday's decision, the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case, because the DVD code was never meant to be public.

    Exactly when are trade secrets "meant" to be public ? Does this ruling really place "trade secrets" above free-speech ? Unreal.

    Nor did the code itself contribute significantly to a debate over whether DVDs should be encrypted at all, the judges said.

    Is the publics' role simply to debate things that they can't do anything about ? DeCSS added plenty to the public debate, because it enabled people to do something that they couldn't previously do. It IS the debate.
  • Good. (Score:5, Insightful)

    by jcsehak (559709) on Monday August 25, 2003 @04:58PM (#6787633) Homepage
    Let me state, right off the bat: this is not a troll.

    While I agree with just about everybody here that reverse-engineering shouldn't be illegal, and you should be able to publish DeCSS, I just want to watch the DVD I bought legally for crying out loud, etc --

    Let's keep the first amendment out of this, okay? DeCSS is code. It's not free expression, it's not an Art form. It's simply a useful tool that let's you watch DVDs on your linux box. It should be legal to distribute it, not because of free speech, but because you simply should be allowed to write code that let's you watch movies.

    Rather than trying to shove the square peg of technology into the round hole of the 1st amendment, we should be addressing current technology laws. In a way, not calling shenanigans on the DMCA every chance you get implies your acceptance of it. If you fix the DeCSS problem with 1st amendment logic, you've fixed the DeCSS problem. But if you fix it by repealing the DMCA, you've fixed a whole lot of other problems as well.
    • Re:Good. (Score:3, Interesting)

      by johnbeat (685167)
      If computer code is not creative expression, why can it be copyrighted?
    • Re:Good. (Score:3, Informative)

      1st amendment kinda does apply, though.

      The issue is about protecting snake-oil. Look at the patterns of these laws - from Felton to Sklyarov - refuting claims of "being secure" is becoming illegal; any business model, no matter how far-fetched, is protected. The people creating the flaws are held harmless; the people who point them out are crucified.

      Case and point - find an open WAP in the parking lot of a large retail store. Walk inside, and see the "PC Cash Registers" are using it, broadcasting credit c
    • Re:Good. (Score:3, Informative)

      by mav[LAG] (31387)
      Let's keep the first amendment out of this, okay? DeCSS is code. It's not free expression, it's not an Art form. It's simply a useful tool that let's you watch DVDs on your linux box.

      Source code is protected speech under US law I believe. From Dave Touretzky's gallery of DeCSS scramblers [cmu.edu]:

      ...the 9th Circuit US Court of Appeals, who ruled in the Bernstein cryptography case that source code is indeed protected speech. In their decision, The 9th Circuit even quoted some Scheme code from the declaration of

    • It has always perplexed me how software came to fall under the protection of copyright. It starts with the idea that software is "expression" (not "invention") and should be protected as such.

      I mean, I can understand why companies would want such a thing: if software were protected by patent only -- and, provided software patents weren't granted so irresponsibly (i.e. a patent souldn't cover abstract or nonnovel concepts, mathematical formula, etc. but only actual, specific implementations of novel concep

  • Decrypt and Copy? (Score:3, Insightful)

    by vandan (151516) on Monday August 25, 2003 @04:59PM (#6787645) Homepage
    Bullshit.

    Decrypt - yes. You need to decrypt a DVD before playing it.

    Copy - no. You can copy a DVD with the encryption in-tact.

    This is about licencing fees. Each player must be licensed.

    Each time someone tells you it's about copy protection, punch them in the face for me.
  • by ewhac (5844) on Monday August 25, 2003 @05:04PM (#6787704) Homepage Journal

    The next obvious stop is the Federal Circuit, which is where Constitutional matters such as Free Speech get decided.

    Trade "secrets", once released into the retail marketplace, essentially cease to be so, since reverse-engineering is a legitimate practice, and always has been. License "agreements", which are a legal fiction anyway, do not change this fact. The idea that such compromised "secrets" can still trump Free Speech is ludicrous on its face.

    Don't think for one nanosecond that this is over.

    Oh, and to head off the foolish remarks ahead of time:

    • Copying is not theft, and never was.
      Copying a thing is not the same as taking a thing. They are morally, economically, and legally distinct acts. Conflation of the two will merely confuse you and lead you to the wrong conclusions.
    • EULAs are bullshit.
      See this editorial [vwh.net] for a primer as to why you should view any such "agreement" as highly suspect.
    • Yes, there are legitimate reasons for getting at the raw data.
      Merely because you can't think of a reason why anyone should examine the unencrypted data on DVDs doesn't mean good reasons don't exist (wacky screen blankers and realtime integration with video games are but two examples). Therefore, cutting off all access to that data shows a remarkably foolish lack of foresight; you have no idea what you'll be depriving yourself of later.
    • The Law is not the be-all end-all authority of moral behavior.
      Merely chanting, "It's illegal!" will win you no new followers. There are plenty of foolish, self-serving laws on the books, and many others are violated on a daily basis without threat to the Republic. You must describe why you believe such illegality is a social benefit, not just for you, but for your audience as well.
    • "Property" cuts both ways.
      Copyright extremists like to bleat that creators' rights should be protected, and that creators should have absolute control over their creations. Apart from the fact that this point of view is completely unrealistic, it also fails to take into account that, by virtue of having sold (not licensed) their goods in the retail marketplace, their "properties" are now subject to the whims of a new owner -- namely, the person who purchased it, and who may have very different ideas about what should and shouldn't be done with it. S/he is every bit the legitimate owner as the creator. So who calls the shots, and how do you justify that?

    Schwab

  • by Sloppy (14984) * on Monday August 25, 2003 @05:08PM (#6787742) Homepage Journal
    I have an idea. I keep it a secret for a while. Lots of people want to use my idea, so I license my idea to them, on the condition they aren't allowed to tell my idea to someone else.

    My licensees then start to sell boxes that contain my idea inside of them. The boxes are difficult, but not impossible, to open. They sell these boxes far and wide, to anyone who wants them, without any contractual terms. You can walk into a store and anonymously buy one of these boxes with cash.

    Someone eventually opens one of the boxes and peeks inside to see how it works. He happens to have picked one of the easier-to-open boxes, but really, all of the boxes were openable. It was just a question of how hard someone was willing to work.

    Did I exercise due dilligence in keeping my idea a secret?

    That's about how solid DVDCCA's trade secret is: not at all. The widespread publication of the already-reverse-engineered DeCSS isn't what screwed them. The sale of DVD players themselves is what doomed them. As soon as the first DVD player was sold to an end-user without any contractual obligation to keep the inner workings a secret, the DVDCCA had lost control of their secret. Anyone could have opened their box, even here in USA. Some guy in Norway just happened to be the first to get the glory.

    That this loss of control was known about in advance (the whole point was that consumer electronics would implement the algorithm) rather than one of their licensees surprising them by producing a DVD player, is devestating.

    If they wanted to keep CSS as a trade secret, they should have made it so DVDs could only be played in theaters, with the descrambling happening on equipment that was under control of people with whom they had secrecy agreements.

  • Screw that. (Score:3, Informative)

    by BoneFlower (107640) <george@worroll.gmail@com> on Monday August 25, 2003 @05:10PM (#6787757) Journal
    http://www.indrasweb.com/blog/archives/000063.php# 000063

    Permission granted to spread this link around.
  • by ninewands (105734) on Monday August 25, 2003 @05:11PM (#6787783)
    I was under the impression that the only way that publishing a "trade secret" was wrong was if the owner had entrusted you with it and you disclosed it.

    I cannot see how Brunner can be found liable for publishing the DVDCCA's "trade secrets" when Johanssen's code was independently developed in a reverse engineering environment even more stringent than the classic "clean room." I may be incorrect on the facts, but as I understand the Norwegian case, Johanssen did not dismantle his DVD player, download the ROMs and then disassemble the code. Most of what he did involved examining the data on the disk and trying to find the decryption key by means of quasi-brute-force cracking.

    I see no violation of "trade secrets" here primarily because neither Johanssen nor Brunner were ever entrusted with the "secret" by the DVDCCA in the first place. Johanssen discovered it by independent reverse engineering, which the US Supreme Court has already determined to be protected as "fair use."

    But, then again, I MIGHT be wrong on that.
  • Prof (Score:3, Informative)

    by heli0 (659560) on Monday August 25, 2003 @05:16PM (#6787835)
    Our favorite dmca-flaunting professor Dr. David Touretzky has most of the decss implementations hosted at his site [cmu.edu].

    He also has the scientology documents that slashdot censors [theregister.co.uk], which you can read here [cmu.edu]

    Dr Touretsky also received a cease and desist letter [cmu.edu] from COS in an attempt to remove the material, but I guess he wasn't more worried about spending his dot com millions than setting a horrible precedent by caving.

  • Trade secret law (Score:3, Interesting)

    by Hamster Lover (558288) on Monday August 25, 2003 @05:31PM (#6788005) Journal
    First off, the IANAL blurb.

    From my searching on the web for trade secret law, I have found several nuggets of information:

    - Trade secret law is generally State enforced, there is a Federal component, but the States by and large enforce trade secrets.

    - Reverse engineering is considered a complete defense, that is, if the trade secret was discovered through the author's own efforts then the disclosure of said trade secret disolves the trade secret protection and cannot be considered actionable.

    I did not read the court decision, but I am pretty sure from the history of the DeCSS controversy that whatever trade secret protection for DeCSS that existed was extinguished by the discovery and publishing of the DeCSS keys from the unencrypted Xing implementation. Thus, the reverse engineered discovery was entirely legal and entirely disolved whatever trade secret protection existed. I don't see how this could be considered trade secret any longer, given the method of discovery and widespread nature of the information.

    My 2 cents.
  • by AJWM (19027) on Monday August 25, 2003 @06:21PM (#6788496) Homepage
    This is only the state Supreme Court. If the appeal makes its way to the US Supreme court, they might disagree with: "the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case."

    Last time I looked, the US Constitution specifically protects free speech, but only indirectly protects property rights (and specifically limits so-called intellectual property), and says nothing at all about trade secrets.

    OTOH, courts -- even Supreme Courts -- have been known to come up with screwy decisions.
  • by dumky (598905) on Monday August 25, 2003 @08:23PM (#6789663) Homepage
    IANAL and my english isn't that great sometimes, but EFF's release concerning this doesn't match BuisnessWeek's, from what I can tell.

    Check out EFF's release: California Supreme Court Upholds Free Speech in DVD Case [eff.org].

    I am misunderstanding it?
  • by jwr (20994) on Monday August 25, 2003 @08:43PM (#6789816) Homepage
    It is interesting to observe what is currently happening in the US. I'm sure this period will be thoroughly covered in future history books. Witness the Americans passively giving up all they have been fighting for and all they praise as dear to their country. Witness the vanishing of freedom and privacy, the death of independent media, and -- most worrying of all -- death of public opinion, which just blindly listens to the media and the current administration.

    The net effect of all this is that the average citizen will not oppose his rights being trampled, will not mind his privacy being gone, and will support going to war against anyone, given sufficient amount of convincing by administration officials.

    Wake up, Americans!
  • by Cid Highwind (9258) on Monday August 25, 2003 @10:06PM (#6790417) Homepage
    This case is about the source code to decss.exe in specific, not about open-source CSS decoders in general. DeCSS is *not* what lets you watch DVDs in Linux. That's done by libdvdread and libdvdcss, which (so far) have not been sued, harassed, or even mentioned by the big bad MPAA! DeCSS is a *Windows-only* utility that decrypts DVD images copied to a hard drive. That might be fair use, but it's certainly not a DVD player for Linux.

    So go on, expend all your political energy whining about DeCSS and your God-given right to watch DVDs on your Linux box, and ignore Ashcroft, the TIA, the PATRIOT act, and a hundred DMCA cases you've never heard of that are the real threats to your freedom.

    Flame away, I'll be watching The Two Towers DVD with xine on my Gentoo box...

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