DeCSS Loses Free Speech Shield 613
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."
Trade secret case depends on Norway (Score:5, Interesting)
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.
Laws laws laws. (Score:5, Interesting)
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.
"Outranked"? (Score:5, Interesting)
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.
Meant to be public? (Score:4, Interesting)
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?
libdvdcss, libdvdread (Score:2, Interesting)
Oh well. Screw the DVD-CCA. I'm going to keep doing what I want, and next time I go to a movie theater, I'm going to hand out free CD's with a bootable Linux-based DVD player on them.
Re:The solution (Score:2, Interesting)
The DVD makers have rights too... (Score:2, Interesting)
At the same time, those who produce these DVD's should not have a monopoly and charge 15x what it costs to produce the product. And they should not release the same DVD over and over and over again to make 20 dollars * 3 times. First comes the DVD with no extras, then the special edition, then the collectors edition.
If you view this from an emotional standpoint, I can see why some would want to screw the movie industry.
Re:The solution (Score:5, Interesting)
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.
Re:Yes, trade secret rights. (Score:5, Interesting)
Of course, that doesn't change your point that trade secrets are valuable (your Coca-Cola formula example is, actually, a good one... it's a trade secret, not a patent), however, one must not allow corporations to trump the rights of the public in order to protect their bottom line (a disturbing trend these days).
Re:It's not "copying" (Score:1, Interesting)
Do you wan't to forbid P2P systems?
Do you wan't to forbid the WWW?
Do you wan't to forbid local libraries?
Do you wan't to forbid hardware stores?
They all have give/sell services which can
potentially conflict with national legislation.
The music/movie industrie has lost, most
of their products are inferior, prices
inflated, and they'd rather sue instead
of innovate. Their greedy and dumb.
Re:Yes, trade secret rights. (Score:5, Interesting)
Patents are essentially nothing more or less than one particular method for creating monopolies. Monopolies have, except when relatively weak, a net negative impact on society. Thus when an individual owns a patent, there can be an argument that the net impact on society is positive. It distributes the power base, and thus strengthens democracy. But when some centralized agency, say an employer, owns or controls the patent then net benefit on society becomes negative because it acts of further strengthen already unusually strong elements. And thus weakens democracy.
Note that while a republic does not depend on being egalitarian, and often isn't, a democracy does so depend. Thus as centralizations of power accumulate the country becomes less and less democratic (small d). Not, however, necessarily more republican. If the power is quite centralized oligarcies are more likely. Or even some sort of virtual feudal system (with, e.g., people being forbidden by contract from changing masters [perhaps employers?])
Somebody correct me if I'm wrong, but ... (Score:5, Interesting)
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.
Re:Good. (Score:3, Interesting)
Re:Trade secret case depends on Norway (Score:4, Interesting)
Trade secret law (Score:3, Interesting)
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.
why do you need DeCSS to copy a DVD? (Score:2, Interesting)
now- admittedly, for the copied data to be useful, you need the ability to write that data on a
compatible (read, dual layered) medium that is not available at the consumer level.
but (ianal) the copyright law exception that allow you to make a
backup don't require that backup to be useful. You have the data, it is backed up.
think I'm being silly? Consider a professional grade 4 track for audio production, something with DRM that allows a digital backup to be created once from the original master.. lets say you lose the originals/they get damaged.. can the backups help? no-- you can't back them up.
Trade secrets? How do I know one when I see it? (Score:1, Interesting)
If "C" should somehow independently discover the secret, "C" is in no way bound to keep it. This is partly because "C" isn't obligated to "A" and mainly because there is no way for "C" to recognize the information as being secret without having been so informed by "A".
And trade secrets are limited in scope. A company can't say that everything you learn while within their walls or from contact with their employees or agents is a trade secret. If it isn't clearly identified as a secret when someone tells it to you, it's not your responsibility to keep it from others.
DeCSS is a fine example of a non-secret. While "A" and "B" mutually agreed to keep the secret, "C" found it out independently and has no obligation to "A". Even if "C" discovered the secret because "B" forgot to protect it, the breach is by "B" who can be sued by "A". "C" is in the clear.
Re:Something I've always wondered about.... (Score:3, Interesting)
I'm not sure how DVD rippers get around the protection. It's been posted in the comments for this story that the various ripping programs out there don't use DeCSS, and are much more efficient than if they did use DeCSS.
Re:The solution (Score:1, Interesting)
There is a circular logic in your argument that assumes he still broke the law. In reality, all he has done is transfer data from one place to another, completely outside the jurisdiction of the United States and that data never crossed the border into the U.S.
The argument appears to be that it would be illegal to upload data to a non-U.S server from the U.S simply because that data was illegal when you uploaded it from inside the U.S. If you didn't upload it from the U.S, how could it be illegal in the U.S?
Excellent point (Score:2, Interesting)
The point is that the MPAA (and now RIAA, Microsoft, etc.) make it a point in assuming that their customer base is a part of their problem. Fine. Then I won't be a part of their customer base. End of story.
Excellent point. If you weren't already at 5 points, I'd mod you up instead of replying.
I have known many friends who felt very torn whether to buy an album by an artist they liked-- if they buy it, they are lining the pockets of an insdustry they felt betrayed by, but they still wanted to support their artists.
Understandable. However, it is a misconception that the creators of the content make money from CD sales. Except for a few very well know and very well off individuals, artists make most of their money from concert sales. They generate interest in those concerts when people listen to their music, regardless of how their fans come across that music.
If you want to support your artists, buy concert tickets, not CDs.
Not the final authority. (Score:5, Interesting)
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.
It's NOT hard to copy DVDs w/out DeCSS (Score:3, Interesting)
When I bought my G4 it was advertised as being able to play DVDs w/out an mpeg decoder card. They were right, but the DVD software they had written wasn't up to the task. They have since lost a class action suit on this point.
Before the update to the DVD player was released, I found that I could get DVDs to play back properly (no more sound-going-out-of-sync) if I first made a disk image of the DVD then mounted it. Opening the Apple DVD Player software allowed me to play the "fake" dvd flawlessly.
I think this was fair use, but it does show how someone could pirate DVDs w/out using DeCSS. A simple copy works. This would not make much sense for piracy since used DVDs are cheaper than the HD space they take up.
California Supreme Cout Decision & Commentary (Score:4, Interesting)
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:
Prof. Eugene Volokh [ucla.edu] of UCLA Law School [ucla.edu]and the Volokh Conspiracy [volokh.com] has some comments [volokh.com].
Re:Outrageous Outranking (Score:1, Interesting)
Re:Trade secret case depends on Norway (Score:3, Interesting)
Not consistent with EFF's news (Score:5, Interesting)
Check out EFF's release: California Supreme Court Upholds Free Speech in DVD Case [eff.org].
I am misunderstanding it?
It's not about Linux, you ninnies! (Score:5, Interesting)
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...
Re:Which came first? (Score:3, Interesting)
Perhaps the first amendment repealed that section of the Constitution.
Software is invention more than it is expression (Score:3, Interesting)
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 concepts) -- well,
So, I can understand why it's a "better deal" for software companies that code falls under the rules of copyright rather than those of patents. Still, software has much more in common with patentable inventions than it has with, I don't know, Hamlet or Starry Night or Finnegans Wake.
Yes, sometimes some code is exclusively the expression of an idea--Hello World examples in text books, for instance, Touretzky's DeCSS Gallery, etc. And, yes, I buy the concept that software is to varying extents both functional and expressive. Most of the time, however, software is no different than a recipe. Recipes are also dual use -- arguably more expressive than code is functional -- but a recipe still doesn't necessarily get the protection of copyright law.
Copyright, after all, was devised to encourage the spread of intangible ideas, art, research, press. Patents, likewise, were devised to encourage invention, technology, science.
Now, I admit, I'm a socialist bastard and I reject property outright. But it seems to me, even on "social democratic" grounds, that software copyrights are contrary to the intent of copyright and that software ought to be protected, if at all, under a different system of law.
I know Slashdot hates software patents, but, in all honesty, software patents are a deal more sane than software copyright, if software went through the same scrutiny as other inventions. Patents are limited in both time and scope. Patents apply to specific implementations, only. Patents are "public domain" (i.e. on the public record for the benefit fo the public). Patent rights don't prevent tinkering and they don't prevent people from dreaming up new ideas based on what they've seen.
If software were protected by a sane system of patents, I very much doubt the GPL would have come to pass at all because most of the things it seeks to protect would be the case for all software.
Of course, when we speak of "protection" we're talking about two different things: the right to control one's creation and the right to create it in the first place. Slashdot likes "software is expression" because it protects the latter, but, I think we're ultimately shooting ourselves in the foot due to the overzealousness of protections for the former. Protecting the right to reverse engineer, tinker, experiment, and so on, needn't come at the burden of unreasonable rights of control.
bacchusrx.
Re:Dear California Supreme Court: +1,FairAndBalanc (Score:1, Interesting)
Re:It's NOT hard to copy DVDs w/out DeCSS (Score:3, Interesting)
Have you seen current hard disk prices? You don't need extraordinary shopping skills to get a price of no more than $1 per gigabyte. A used DVD for $10 would be a good price. Guess how much space that DVD probably takes on your hard drive. I bet it is something like 7 or 8 gigabytes so about $8.
Now bear in mind that often when people claim exponential growth they really just mean really fast growth. But the amount of hard drive storage you can buy for a fixed amount of money really has grown exponentially. So in about 2 years you can expect that DVD to fit in less than $1 worth of hard drive space. Houston, we do have a problem.
Publishing usually is a good idea (Score:1, Interesting)
Also last I checked, the code will always be available without needing to reverse engineer it since it has been submitted as evidence in the Jon Johansen case.