DeCSS Injunction Ruling 737
Anonymous Coward writes "This morning, Judge Lewis Kaplan of the Southern District of New York issued his memorandum opinion explaining his decision to grant an injunction against people publishing the DeCSS source code. His ruling specifically finds that the
Digital Millennium Copyright Act (which prohibits the publication
of computer programs designed to circumvent copy protection) is
constitutional, and does not infringe on the defendants' free
speech rights. He also suggests that computer source code is not ordinarily a form of expression, and that, even if it were, Congress could regulate it in order to serve other interests, such as the economic interest of copyright holders. See 2600.com for
news on the protest tomorrow night against the plaintiffs. "
Still uncool (Score:2)
Outside the USA, we can happy go on developing... (Score:2)
Software isn't Expression? (Score:2)
Software can be considered speech, but it can also be considered an invention of some sort. If one accepts that a peice of software is basically the same as a mechanical or electronic device, then all our nightmares come true.
Not only does the DMCA quite logical then, but so are a lot of other things. Software patents and a number of other things become quite reasonable.
However, even with
It is indeed a dark day.
Software Patents and Canada (Score:2)
Time for a codeEnglish util? (Score:2)
The ruling is correct. :\ (Score:3)
The fundamental problem here is that the DMCA is corrupt. It makes illegal things that we think should not be. However, it is not this judge's position to decide if the law is moral, only if this action violates it. And it does.
The real question is, how did we end up with elected officials that passed a law such as the DMCA? Keep this issue in mind when you vote this November, and encourage others to as well.
Re:Outside the USA, we can happy go on developing. (Score:2)
You would be surprised how far a companies reach is, even if the US courts cannot get you, the company can
Judge considers even playing a DVD Illegal (Score:5)
IANAL, but it seems to me that in one fell swoop this judge has just said that there is no such thing as fair use. Are there any lawyers out there who can say for certain if I am correct in this assumption?
anecdote (Score:5)
Um, does not circumvent copy protection (Score:5)
Hummm?? Anybody??
Jazilla.org - the Java Mozilla [sourceforge.net]
Re:A Fair and sane ruling (Score:2)
(note: I mixed some sarcasm in there, see if you can spot it)
Reengineer (Score:2)
It could still be considered publishing a trade secret, but given the lawyers left the source code in the open for two weeks likely means that it's no longer a trade secret.
It could also still be considered circumventing the copy protection, but what do I care? I'm in Canada.
It would also have the benefit of not being derived from another player where there is a license to agree to.
Any takers?
Re:A Fair and sane ruling (Score:4)
The argument that computer code is an expression of free speech, however, is an old and tired one. It should not have been used. The proper argument should be that this is a tool to play DVDs, not to copy them.
I don't get it. (Score:3)
Part of the ruling says that the judge doesn't believe the defendants proved that cracking CSS could help play DVDs under Linux. Why? Because you can already play DVDs under Windows, and there are a lot more Windows machines than Linux boxen.
What? That's exactly why it was necessary! Evidently no one wanted to spend the money to by into the CSS scheme to provide a player for Linux. Why? Perhaps it has something to do with the perceived size of the market?
Perhaps for his next trick, the judge could explain why PBS (public broadcasting in the US) shouldn't need to beg for money every year to stay on the air because it has less viewers (and very few commercials).
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Need to lobby for a Free Software Exception (Score:4)
If you ask me, the party to blame for this godsdamned mess isn't the judge, MPAA, or 2600. It's Congress. We are in a position where we need to prove that our product was developed for the *sole purpose* of running DVD's on Linux (if this were true, it wouldn't run on BSD, HURD, or Windows). Congress should have written the law so that the plaintiff has the burden of proof that the product is written for the purpose of copyright infringement.
We also need to lobby Congress for a "free software" exception -- that copyright infringement technologies can be reverse-engineered for the purpose of writing "free (open source) software", which constitutes an important part of our public infrastructure.
Let me be honest here...I'm about ready to give up writing software entirely if this bullshit continues. What's going on here could kill the Linux dream, and I don't want to go back to a world where computing isn't fun.
Re:A Fair and sane ruling (Score:4)
Unbelivable.. (Score:2)
Is a lead-filled 4x4 severe enough for this guy? I'll have to do a gross amount of trauma to his skull to kill him, as it has become glaringly apparent he has no brain.
Re:A Fair and sane ruling (Score:2)
You've *got* to be kidding.
In his initial granting of the injunction, I thought he'd made a reasonable decision, that if he didn't grant the injunction, he would effectively be deciding the case in advance.
But his logic is inane. The assertion that viewing the files under Linux is not a relevant issue because Windows is more popular? That's truly moronic. The reverse engineering exception says nothing about popularity, nor should it, nor should the size of the market be relevant to whether the reverse engineering is acceptable.
Furthermore, " the record clearly
demonstrates that the chief focus of those promoting the dissemination of DeCSS is to permit widespread copying and dissemination of unauthorized copies of copyrighted works." What record? That's a sham! Slashdot quotes should not be admissible in a court of law, hasn't this judge ever heard of hearsay?
Re:Um, does not circumvent copy protection (Score:2)
In October 1999, an individual or group, believed to be in Europe, managed to "hack'' CSS2 and began offering, via the Internet, a software utility called DeCSS that enables users to break the CSS copy protection system and hence to make and distribute digital copies of DVD movies.
Unfortunately, the slant they are putting on this is all wrong. I don't think we can expect a judge to reverse any decision he has already made, so the merits will have to be argued in court. :(
Re:Judge considers even playing a DVD Illegal (Score:2)
!
helping out. what can we do?! (Score:2)
Maybe I'm cynical, but I don't think that writing letters/emails to the MPAA and all the major studios will do any good. They probabaly just toss them right in the trash.
Looking for ideas.
Definition of "Access" in DMCA (Score:5)
What I (and a good number of people, I'd guess) want to know is, why didn't the counsel for the defense make these sorts of piracy arguments? I am somewhat confused as to why the plaintiffs got away with the classification of CSS as "a technological system that controls access to other copyrighted works" -- although here you get into the ambiguity I just described. Kaplan ends up ruling that CSS protects content -- but it really only ends up protecting playback, since anyone with some equipment can copy but only people with "legit" DVD technology can play it back. As far as I can tell from the various hearings/rulings that have been posted, this distinction is never made clear by the defense! There's a lot of exemptions they try to invoke, but Kaplan's reasons for rejecting them do not seem out of line. In fact, he appears to do a pretty decent job of assessing what has been presented to him. Did the defense throw it all away by ignoring its best argument? The recent LinuxWorld interview with Jon J. had the same complaint; i'm just echoing it here.
Re:Time for a codeEnglish util? (Score:2)
Re:Software Patents and Canada (Score:2)
Although the last conference that I attended had a Canadian patent agent that claimed that the courts were much more favourable towards copyright infringement than to patent infringement in software cases, and usually advised his clients to pursue registered copyrights on their software than the costly application for a patent.
But if you don't believe me you can download the Canadian laws regarding patents from here. [ic.gc.ca]
Essentially software patents are nothing more than flow charts of logic and are more similar to business method patents than "normal" patents.
Better lawyers needed? (Score:3)
It's almost as if a store accuses you of shoplifting a book, and then doesn't provide proof that you've got that book in your bag.
In any basic argumentative case such as this, you have to back up your claims, else your argument gets thrown out. It's pretty simple, actually.
Judge Kaplan is a pinhead (Score:4)
What he is saying is that copyright holders can eliminate Fair Use through technological measures. This makes *no* sense whatsoever; it suggests that the law only applies to the technologically challenged.
If legal precedent means anything, it is common sense that technological impediments to Fair Use:
- may legally be circumvented
- are probably illegal prima facie (ooh, Latin)
- could be construed to represent contempt of court
I'm fairly certain that this judge's idiotic decision will be promptly overturned.New XFMail home page [slappy.org]
Re:license by Red Hat? (Score:2)
--GnrcMan--
Re:Judge considers even playing a DVD Illegal (Score:5)
Well, yes. This is the whole point. Under traditional law, copyright does not give copyright-holders the ability to restrict you in certain ways, such as restricting the sale of books you've bought (the "first sale" doctrine) or making a backup copy, or copying a small part of a work ("fair use"). Technology has now given copyright holders the technical ability to restrict those things, and the DMCA makes it a felony to produce a device which can circumvent them, and when the other part of the law goes into effect later this year, will make it a felony to circumvent them. So in theory, you have the right to resell or copy work you've bought - but technology can prevent that, and if you circumvent the technology, you're breaking the law. "Fair use" was never explicitly eliminated, but it effectively was.
Copyright law says you can make a backup copy, or play your cassette tape on any machine you want, but the DMCA says that using any sort of digital content in any way that the copyright holder doesn't explicitly permit makes you a felon.
Welcome to the new world of copyright.
--
Michael Sims-michael at slashdot.org
Re:The ruling is correct. :\ (Score:2)
If it had been patented, DeCSS would be in violation of a patent, but the second the patent expired we'd be free to use their original code anyway.
DVD CCA decided to not protect their work beyond keeping mum. This has always been upheld as not being a legal protection unless someone they told blabbed. I think that the case would have been stronger if they had cleanly figured out the keys too, but I have no doubt that this idiot will get overridden in appeals.
Re:It's not for copying (Score:3)
Have you actually read the DMCA? It doesn't apply to copy protection, but to _access_ protection! Under the DMCA, you _cannot_ legally circumvent a technological measure that "effectively controls access to a copyrighted work." It has been established that CSS doesn't prevent copying; it prevents _access_. You want to complain about the DMCA being unconstitutional, go ahead. Just keep in mind that copy protection is not what's at issue here.
By the way, I have an interesting application of the DMCA on my LiViD mirror... I'm calling the gzipping on the tarballs a technological measure that effectively controls access to the code within. It's as effective as CSS: anyone with the right tool can break it:)
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Code Not a Form of Expression?! (Score:5)
The judge argues that code is not a normal form of personal expression. Works of art like books and scuplures are synthized in the same maner: an idea in the mind of a person modivates them to create. Even things like building furnature, baking cakes, etc are forms of personal expression.
Does Judge Lewis Kaplan think that some agency has rights to dictate what code a well minded individual can write? If he does, then said agency can also dictate how one can write books, make sculptures, build furnature, and bake cakes.
The law was never mind to do this. I certainly hope that another judge see this error and reverses this decision.
Real text to C Source converter (Score:4)
It would seem to me this would clearly bring about the distinction you want. Any restrictions on it would be the same as restricting speech.
Worst case? They hold the "decryptor" is a "cracking tool that exists soley to 'steal' copyrighted material" under those absurd new laws. Fine, put the decryptor on a site in a country that doesn't do patents/copyrights and you're in business.
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Mostly, I'd agree, except (Score:2)
Even assuming that some would use DeCSS only to view copyrighted motion pictures which they lawfully possessed, and thus arguably not infringe plaintiffs' copyrights, the record clearly demonstrates that the chief focus of those promoting the dissemination of DeCSS is to permit widespread copying and dissemination of unauthorized copies of copyrighted works
Overwhelmingly people are interested in DeCSS to allow them to view legitimate copies that they own. I haven't even heard of anybody who is promoting DeCSS for piracy purposes (although I suppose they exist). As far as piracy goes, there's no doubt something like DeCSS might be useful if you had swiped a supply of blanks and had plenty of time on your hands to knock off one or two copies, but DeCSS as far as I can see is neither technically necessary nor sufficient for DVD copying. (A question for you DVD hackers -- can an unmodified DVD driver return the secret key data on the DVD to the OS? Does DeCSS make any difference in this regard?)
In any case, the quoted paragraph is, I think, a key point in the judge's reasoning and one that is so incredibly misguided from a technical standpoint I can only conclude he may have taken a little mental vacation at some point in the proceedings.
I think the motion picture industry is mainly interested in regional segmentation of their markets. Historically, a copyright owner loses control over the copy once sold, and people can resell their copies as they please, including at a profit back into a different in competition with the copyright holder.
how much . . . (Score:2)
how much is that judge in the window,
the one with the waggley tail?
how much is that judge in the window?
I DO hope that judge is for sale . . .
</singing>
ah, shit. Too late. Already sold.
Facts? (Score:2)
Okay, this might be a stupid question, since I'm not a layer, and have never even read this type of document before, but in the section at the top entitled "Facts," is that where the judge is supposed to write the underlying facts of the case?
I ask because this:
strikes me as highly non-factual. Doesn't a DVD player + a DVD burner or a DVD player + hard drive enable users to make digital copies of DVD movies?And doesn't the post office or the internet enable users to distribute digital copies of DVD movies?
You don't need DeCSS to do that.
It seems to me that if he starts on this incorrect premise, that DeCSS actually allows copying of otherwise uncopyable, copyrighted material, he is bound to reach an incorrect conclusion.
Unless the material is only copyrighted in its decrypted form? Then, byte-for-byte copying of DVD's is legal?
I don't think this is the case, but reading the "facts," I can't see any other possibilities.
"It's the region codes, stupid." (Score:4)
--
Getting Grass-Roots Support May Help (Score:2)
Footnote 14 says it all (Score:2)
"even if DeCSS wereintended and usable solely to permit the playing, and not the copying, of DVDs on Linux machines, the playing without a licensed CSS "player key'' would "circumvent a technological measure'' that effectively controls access to a copyrighted work and violate the statute in any case."
The DMCA, however states:
1201(c)(1) - Nothing in this section effect rights, remedies, limitations or defenses to copyright infringment, INCLUDING FAIR USE, under this title.
The judge in this case never considers the fact that being able to *play* on Linux would very possible be considered a "fair use".
Fair Use is the public's balance against the bundle of rights given to copyright holders. Deny the existence of fair use and you violate the Constitution's prescription of grants of *limited* rights to intellectual property holders.
This judge really doesn't get it and its clear the guy has been bought (not literally, but metaphorically) by the big IP holders like the music and movie industries.
What a tool!
Re:Software isn't Expression? (Score:3)
You need to distinguish between source and executable. (And yes, I know with interpreted languages that's a bit more subtle.) The, say, C language source code of some piece of software is no more an actual invention than is the text and figures describing a patented invention. Both are just descriptions of how to implement the invention (or in patentese, "reduce it to practise").
If the judge holds that source code is not speech (contrary to an earlier legal decision in a different district, as I recall), then it raises the question of where the line is drawn. Are detailed specifications for software speech? What if they're suficiently detailed and in some standard specification language that could be mechanically translated into a programming language (and thence compiled into machine language, which if loaded into the memory of an appropriate computer would constitute "reducing the invention to practise").
It probably wouldn't be hard to write a program that translated C (or whatever) code to unambiguous English text, and conversely translate such text back in to C code. (Even beyond just the obvious of spelling out the punctuation and numerics.) Would that English text qualify as speech?
This is shaping up to be something the Supremes will have a field day with.
(Insert usual IANAL disclaimer here.)
Re:The ruling is correct. :\ (Score:3)
Unfortunately, the judge is correct. DeCSS is not, however much we might like it to be, free speech. Sure, the comments inside the code might be, but the algorithm itself is not.
I strongly disagree. I believe that programming represents a uniquely personal form of expression. Everyone would code that algorithm a little differently, and its entirely possible that the code itself can be perceived as a "statement" of protest (which is certainly expression).
The fundamental problem here is that the DMCA is corrupt. It makes illegal things that we think should not be. However, it is not this judge's position to decide if the law is moral, only if this action violates it. And it does.
Well, I agree but If my understanding of the legal system is correct, the judge was free to take it a step further and delcare the DMCA unconstitutional. Correct me if I'm wrong here, but I believe copyright provisions are spelled out in the constitution. It gives congress the right to protect the fair interest of those who would create something. I think the DMCA goes way overboard and starts lumping on powers to copyright holders which were clearly never intended to be done within the framework laid out in the constiution.
The real question is, how did we end up with elected officials that passed a law such as the DMCA? Keep this issue in mind when you vote this November, and encourage others to as well.
Agreed. Go to the congress webpage and find out how to contact your congressperson today. Find out how they voted on the DMCA and let them know how you feel about this isssue, and let them know how you are going to be voting when it comes november.
totally expected, unfortunatly (Score:5)
In October 1999, an individual or group, believed to be in Europe, managed to "hack'' CSS2 and began offering, via the Internet, a software utility called DeCSS that enables users to break the CSS copy protection system and hence to make and distribute digital copies of DVD movies.
I don't think it's been "proven" that this is only to copy DVD's!! We know this isn't the only reason, therefore the use of the word "hence" really makes me uneasy. We can't even make copies for playback right now with a DVD-RAM, and you don't even need to break the encryption if you have a stamp machine. I can't beleive this was in the opinion, it sounds more like something the corporations would say.
The requirement of immediate and irreparable injury is satisfied in this case. Copyright infringement is presumed to give rise to such harm. In this case, plaintiffs do not allege that defendants have infringed their copyrights, but rather that defendants offer technology that circumvents their copyright protection system and thus facilitates infringement. For purposes of the irreparable injury inquiry, this is a distinction
without a difference. If plaintiffs are correct on the merits, they face substantially the same immediate and irreparable injury from defendants' posting of DeCSS as they would if defendants were infringing directly. Moreover, just as in the case of direct copyright infringement, the extent of the harm plaintiffs will suffer as a result of defendants' alleged activities cannot readily be measured, suggesting that the injury
truly would be irreparable.
So, if I read this right, just the fact that it makes circumventing it possible, this is exactly what is being done. This absurd statement makes me want to grab a bat and start breaking things. The last statement is incredible as well, equating "umeasureable activities" with "irreparable injury"? Am i missing something here? Someone tell me PLEASE....
One of his arguments for not accepting the reverse engineering argument bothers me as well:
Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.21 In consequence, the reverse engineering exception does not apply.
So is he saying the copyright software/system is not a copyrighted piece of software? Is he saying the situation is different for hardware? Doesn't that seem to be a contradicion? Anyone care to expand on this?
I haven't even read the rest of the opinion, because his opinion is plainly clear. His idea of a "level playing field" is this:
Corporations have all the rights and tell you what to do, and you can't do anything about it.
I'm not a big fan of capitalism, but the fact that he doesn't support reverse engineering takes things one step worse: without the ability to compete, we've gone from capitalism to a sort of corporate-totalitarianism.
This lack of respect for people's rights is unacceptable. Furtunatly, they can't do anything about it, short of throwing me in jail. When I pay my 20 bucks for a DVD, I'll do what I want with it short of redistribution.
Lets face it, in 3-5 years we WILL be able to copy DVD's, most likely for playback in DVD players (hopefully).
There might be no recourse for Hollywood, the cat is out of the bag, as many have said. Trying to stop technology that people like with artificial controls is tough, just look at the mp3s. Copyright holders will have to find a real, technology based way to prevent this, which might be impossible in today's world. I sure hope it is.
No, the ruling is not correct. (Score:5)
Not true. Algorithms have been held up, in US federal court, as speech. Look at some of the cryptography cases and you'll see what I mean. Equally, the entire professional of mathematics would be enjoined from free speech protections if algorithms were not treated as speech. I think you misunderstand what speech is. Speech is not just words or text. Its not even just audio, video or anything else you can fit into a nice tidy list. Speech refers to expression in all its forms. Its a vague concept, on purpose!. This prevents tyrannants of all types from trying to squeeze speech into a nice tidy little bundle they can lock away.
So freedom of speech is not something relegated to text, but to all forms of communication. Be it a painting, a scuplture, dance, spoken words, written words, e-mail, scientific documents, mathematical formulas and even source code, which is a form of expression.
So, this judge is wrong, and hopefully he will either see the error of his ways, or a higher court will overturn his ruling. The bottom line is that this judge is but the first round, and there are plenty of appeals from here to courts which have seen thru this sort of hogwash before and made the right ruling.
Common sense will tell you that code is speech. How else would you express the idea?
You're right about one thing: The DMCA is corrupt. Its the biggest attack on the first amendment ever, and this case proves it. Its far more insidious than the CDA ever was (that was so patently unconstitutional that everyone knew it was going to get overturned), the DMCA on the other hand requires a thorough understanding of the issues (which most judges sorely lack) and hence makes it easy for someone to argue one thing, while getting someones freedom of speech rights enjoined. Its all nice and tidy. On the surface the case looks simple. Its too complex to explain to laypeople, and it lends itself to an emotional argument in favor of restricting speech rights. So the DMCA makes it really easy to control expression, without alerting the masses to the fact that they just got sold down the river.
The DMCA is corrupt alright, and we should work to get it ruled unconstitutional by any means necessary.
--
Python
Re:Unbelivable.. (Score:2)
If you read the transcript of the preliminary injunction hearing on the 2600 website, you'll see that the defendant's lawyers are also morons. This is not good!
The point is... (Score:3)
Re:helping out. what can we do?! (Score:5)
This is so frustrating. What can average joe's due to help? I've bought the OpenDVD t-shirt, but what next?
It's been said before, but it bears repeating:
Join the EFF [eff.org]. Get a student/low income membership ($20), get a basic membership ($35) hell if you made big money on the Red Hat / VA Linux stock deals go all the way and get a visionary ($1000) membership. These guys are putting up the legal defense, and like it or not justice costs money in this country.
Let's remember that money isn't the whole deal, the more people the EFF can count as members the more clout it has with various government types. Who are you going to listen to, the group that says "well, we have a couple of members who show up every so often", or the group that says "We have 50,000 registered members." Size does matter.
Some thoughts (Score:2)
Re:The ruling is correct. :\ (Score:2)
The MPAA lawsuit is under the DMCA, while the DVD-CCA lawsuit is under trade secret protection. The DVD-CCA can't sue under the DMCA, because they don't have any copyrighted works.
Second Verse! (Score:2)
The one that likes to chase tail?
How much is that DMCA-passing-Congressman in the window?
I DO know that Congressmans's for sale!
Everybody!
Re: Judge considers even playing a DVD Illegal (Score:2)
Note what Kaplan says:
He is clearly aware that he is protecting a monopoly. Unfortunately, he does not realize that he is proecting the wrong one. He thinks he is protecting the monopoly on distribution of content, which he's not -- as piracy still exists. What he's protecting (unintentionally, I assume) is the monopoly on *who* gets to view that content and *how*.Free speech (Score:2)
the judge saying
"Even if it was considered speech, congress could regulate it to protect copyright holders'.
Nice system.
"Congress shall make no law...".... is supposed to mean that NO MATTER HOW MUCH THE PEOPLE BEG AND SCREAM, a law *CANNOT* be made to violate these principles. Freedom of religion, speech, etc.... It doestn' mean they shouldn't, or aren't supposed to, it means they DO NOT HAVE THE LEGAL POWER TO DO SO.
Not for interoperability? (Score:2)
----------
They contend that DeCSS is necessary to achieve interoperability between computers running on the Linux system and DVDs and that this
exception therefore is satisfied.
This contention fails for three reasons.
First, defendants have offered no evidence to support this assertion.
Second, even assuming that DeCSS runs under Linux, it concededly runs under Windows---a far more widely used operating
system---as well. It therefore cannot reasonably be said that DeCSS was developed "for the sole purpose'' of achieving interoperability
between Linux and DVDs.
Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of
copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other
copyrighted works, such as movies.
In consequence, the reverse engineering exception does not apply.
----------------
This is really strange.
* No one offered any evidence that DeCSS is required to run under Linux? That should be taken care of, and *fast*.
* This was for technical reasons, and can quickly be taken care of. Fine, concede on the Windows software (sort of -- the source will not be hard to port no matter what). This still doesn't take care of the Linux versions of the software.
* I can't speak to the third contention.
Standard IANAL disclaimer applies.
Common sence? Don't identify yourself. (Score:2)
want to do is play them. Is that so hard to understand judge?
People want to control things. I can also understand about possible control issues. I guess people can't totally be blaimed about things that they do to make a profit and then people think that they are a really good idea. I must say that I feel that I can't think that people will eventually come up with something better. I remember when VCR+ was around. The makers of VCR+ wanted to create a system whereby you could simply imput a 4 digit code and have a movie recorded on a particular channel and at a particular time. They defended this also.
I doubt that anyone will be swayed by being called "uncool" or anything like that. Eventually something better than DVDs will come along. I don't really have any of this technology and have never been obcessed about movies in general. I never stockpiled VHS tapes and can't see why people are taking so many risks.
Tell me why bother to make sure you do something questionable and then put your name on it! Why do something so stupid. Why shoot yourself in the foot. People created cracking programs in the past and usually never associated their actual Name/Address match on them. People only have their vanity to loose. I shure would release the code to the program under slashdot-terminal sooner than my actual name if it meant the world to people like you.
All people have done is draw attention to an actual person/people/group to do things.
Decryption (and not copying) violates the DMCA...? (Score:5)
The second half of Footnote #14 is perhaps the most interesting part of the whole ruling. It says: >...even if DeCSS were intended and usable solely to permit the playing, >and not the copying, of DVDs on Linux machines, the playing without a >licensed CSS "player key" would "circumvent a technological measure" >that effectively controls access to a copyrighted work and violate the >statute in any case.
That's interesting because it addresses an angle that most of ``our side'' has not covered. There have certainly been enough arguments that DeCSS is not an effective form of copy protection; but it is an effective form of control. Judge Kaplan' statement implies that, regardless of the original coders' intent, DeCSS is a way of maintaining access control (for the movie studios) at the read-and-display level -- and that this is indeed its primary function.
This small side note, if legally correct, changes the whole playing field. If CSS is not to be considered copy protection but rather access control, then DeCSS is illegal simply because it avoids the need to pay license fees for a reader, notwithstanding any argument about potential redistribution of the original material.
It is as though books came with diary-style locks, and duplicating the keys were illegal. Ludicrous in the non-digital case; but a matter of law in the digital case.
Stand up for your beliefs -- don't be afraid of what's gonna happen [deforest.org]
Copyright protections? (Score:2)
The only protection copyright grants is THE LAW that makes it ILLEGAL to do certain things with copyrighted material (like copy them for various reasons).
This whole thing about copyright law protecting the technological protection mechanisms is bullshit.
They are COPY protection mechanisms, not copyright protection mechanisms.
Points for discussion (Score:2)
DeCSS was not designed primarily to circumvent CSS, that argument is exceptionally unpersuasive.14 <b>In consequence, plaintiffs have an extremely high likelihood of prevailing on the merits unless defendants' activities come within one of the exceptions in the DMCA or unless there is a constitutional impediment to this conclusion. </b>"
"...even if DeCSS were intended and usable solely to permit the playing, and not the copying, of DVDs on Linux machines, the playing without a licensed CSS "player key'' would "circumvent a technological measure'' that effectively controls access to a copyrighted work and violate the statute in any case."
This demonstrates that the DMCA ignores fair use allowances. Unfortunately, fair use seems lower on the totem pole than DMCA.
"...even assuming that DeCSS runs under Linux, it concededly runs under Windows---a far more widely used operating system---as well. It therefore cannot reasonably be said that DeCSS was developed "for the sole purpose'' of achieving
interoperability between Linux and DVDs. "
A point, a point. WHY was DeCSS released as Win32 source, anyway? D'oh!
"Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of
copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.21 In consequence, the reverse engineering exception does not apply. "
Problem - distinction between computer programs and and technological systems is vague.
"Surely there is no suggestion that any of them made a good faith effort to obtain authorization from the copyright owners. "
Another good point.
"If Congress had meant the fair use defense to apply to such actions, it would have said so."
"If plaintiffs are correct on the merits, they face substantially the same immediate and irreparable injury from defendants' posting of DeCSS as they would if defendants were infringing [copyrights] directly."
I create a Content Scrambling System, you break it - is it or is it not the logical assumption that you want to infringe my copyrights?
They had no time (Score:2)
Ok, with that out of the way, I think there are some serious problems with the defense.
1) DeCSS runs under WINDOWS, not Linux. Linux code was derived from it (or vice versa...) but this NEEDS TO BE CLEARED UP, because the argument that a Windows program helps play DVDs under Linux will never be substantiated. I probably WOULD argue that the (Windows) DeCSS code has no legitimate use - you can currently play DVDs under Windows, and there's no pressing need for a program like DeCSS.
2) So now, DeCSS and all similar programs (including Linux version) are under fire, because as the judge says, there is no evidence presented that shows anything about interoperability. The EFF *MUST* bring in the LiViD software to demonstrate in court, and then prove that it would NOT be possible without knowing how CSS works. The judge says that there is " no evidence of any commercially significant purpose" - but he needs to be taught about Free Software - if "commerically significant" is the key, then that sounds pretty strange. Reverse engineering is only legal if you profit from it...?!
Ok well I have to go back to work. Enough rambling.
----
Defense missed antitrust argument (Score:2)
This is especially nifty given Jackson's finding of monopoly status for Microsoft.
Re:Software Patents and Canada (Score:2)
As for protecting source.. this is not, and has never been a PATENT issue. nobody is disputing a patent.
This case has only to do with the DMCA, and it's interpretation. It's possible that DeCSS *IS* illegal under the provisions of the DMCA. That is what it's up to the courts to sourt out.
Read the DMCA... (Score:2)
(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.
(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.
(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.
(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.
Re:payola? (Score:3)
I've known judges, and while corruption can never be ruled out, I would not assume it here. Cluelessness is far more likely as an explanation, IMO. Most judges today still live lives in which they rarely touch a computer (ok, maybe AOL, but only at home) and most of them would be more likely to believe Jack Valenti than either one of us on this issue. Sad but true.
JMR
You're exactly right (Score:2)
It seems like almost no one here understands what the DCMA says (which the judge is ruling on). Based on the law the judgement is perfectly logical!! Only by changing the DCMA can deCSS become legal in the USA (and I doubt the DCMA is unconstitutional either).
I know this isn't a popular view, hopefully if a big enough stink is made some necessary changes will be made (I think it is ridiculous that in the US it is will be illegal to view digital copyright material without a licensed player).
Re:Judge considers even playing a DVD Illegal (Score:2)
I like this one even more (after footnote 73):
So in other words, if DeCSS where allowed to be distributed, the DVD and home video industries would surely collapse! Better run out and buy every VHS and DVD movie that you ever wanted to own, right now.Re:I don't get it. (Score:2)
I was confused about this too. However, if you read carefully, the judge is discussing the defendants' claim that DeCSS was written for the sole purpose of playing DVDs on Linux. His point is that since DeCSS runs on Windows too, it can't be considered to have Linux as its sole purpose. I don't think he phrased it quite right - it sounds like he's talking about playing DVDs on Windows and Linux, but he's really talking about running DeCSS on Windows and Linux. Small verbal difference, big legal difference.
Re:Outside the USA, we can happy go on developing. (Score:2)
You would be surprised how far a companies reach is, even if the US courts cannot get you, the company can
Ohhhh the big bad ol' company's going to get me!!
I don't know what I'll do if they get me!
They are so strong and intelligent and all knowing; and they can have their private little police beat me up!
You see I live in a time when police power is not given to any group who has a bunch of money. Just because I have a great deal of money (Microsoft, IBM, Lexus Nexus, British Telecom, etc) dosn't mean that I can just call out my goombahas and do whatever I want to anyone. So big deal the company's goons can try to illegally attack me. I can also just drive a van full of TNT into their little building. See no more problem!
Maybe just suppose that their little 'representatives' get into a little 'accident' when they try to get me? Oh well
Re:It's not for copying (Score:3)
DVDs are already being pirated. The pirates have obtained the DVD manufacturing equipment (perhaps by theft). Reportedly, one such operation is already running full tilt in Hong Kong. By taking a popular DVD and using it as a master (some processing involved there I am sure), and by copying each and every bit including the key tracks, a new exactly identical DVD is produced and that DVD looks no different than the original to the DVD player. It will index the keys, find the one with its ID, and begin the decrypt and play process using that copied key. This is all a copyright violation and a form of piracy. These clone DVDs are then sold on the black market, depriving the artists, and the investors in the production of the artwork, their returns. It also happens to deprive the original manufacturers of a scale of market but for that aspect I don't perticularly see a violation (although they do tend to be the same organizations as the investors).
Buying a DVD and using DeCSS to play it on the computer of my choice is NOT a copyright violation. Since I have a right (in the USA) to make sufficient personal copies for the purpose of usage (so long as I destroy all of them should I sell, or even lend, my DVD to someone else), then this is legitimate, and is not addressed by the DMCA at all.
Sure, DeCSS does enable one to make an unencrypted version of the DVD, which could be transferred to others over the internet. But DeCSS isn't required to do this. You can capture the audio and video output from an existing player (hardware or software) into a file and transfer that file over the internet. This would be a copyright violation just as much as cloning an encrypted DVD.
If the DVD industry had sanctioned a player program for Linux and BSD systems, which was distributed only in binary form, and would refuse to store decrypted files and only play them, then it could be argued that DeCSS only adds on the ability to create a decrypted file. Since they have not done so, DeCSS has a much more significant role (since statistics show that despite a lot of piracy going on, most people don't engage in piracy, even with media like CDDA that is trivial to pirate) in simply enabling the playing process.
DeCSS has opened our eyes, and potentially the eyes of government investigators, to the potential for the megacorporations to use CSS as a means to squash competitive upstarts (in both production of the artwork as well as manufacturing of players). If the DVD industry was on solid legal ground, they wouldn't need to have Jack Valenti making public pleas with lies about it being only for copying. Now people will see the mechanism by which CSS can not only be a potential anti-trust violation (they would have to actually do it, as the mere existance of the mechanism would not imply the violation), but also be a mechanism of selective price gouging. They need to silence and suppress this "leak".
Re:Definition of "Access" in DMCA (Score:2)
I'm going to copyright something written in English (say, for example, this post). Then I'm going to sue under the DMCA all the English teachers out there for telling people how to evade the access protection mechanism (the English language) of my copyrighted material. I fail to see how this case is in any meaningful way different.
Re:Judge considers even playing a DVD Illegal (Score:2)
That player must have a key, and that would theoretically give me at least one licensed 'Player Key' that I have paid for and received. Would using DeCSS be 'legal' using that key?
This exposes a big DMCA hole/risk (Score:2)
Someone needs to point out to Congress and the appeals courts where this will surely end up that DMCA allows extreme monopolistic/oligopolistic behaviors unless enforced with extreme care, i.e. not as in this case. It allows monopolists to piggy-back their anti-competitive schemes on the pretext of copyright protection, invoking the law's protection for their monopoly! Here's how:
Let's start with the pure digital content. Wrap around it a weak "scrambling" scheme. This will be our excuse. Mix with it, in a way that can't be separately addressed technically (this is the key point), our monopolistic permissioning scheme. Sound familiar?
Now, everyone who tries to reverse engineer the permissioning scheme (promoting competition) is bound, because of how the system was set up by its monopolistic designers, to defeat the, albeit weak, encryption, triggering a DMCA-based lawsuit.
If the copyright owners want to protect their work in the digital domain, the burden should be on them to separate the copyright protection functionality from any other business rule enforcing functionality.
This law is (should be) there to protect the authors' copyright from pirates, not their business deals with their distribution channel partners from competition. It should force them to make this a technical distinction, by reducing protection when they don't.
In other words, the key point: <B>If you <UL>poison</UL> your copyright protection system with anything that limits competition your copy protection device loses DMCA protection</B>
If you decide to educate any of your representatives on this issue, please consider the above. Thanks for reading.
Ignorant Judges (Score:2)
This type of statement represents a problem that is far larger than the DeCSS issue as a whole. Judges and politicians simply don't understand technology. Since consumer electronics are something that is relatively "new" in the world, most people can't be expected to understand the underlying issues, be it that CSS does not prevent DVD piracy, that "one click shopping" should not be a patentable "technology," etc. I'm afraid we're going to see more and more ignorant expressions of opinion like this one until technology is so engrained in people's lives that they regularly understand how it works. Alas, I don't think that will happen in my lifetime.
while this is going on, consumer electronics manufacturers will continue to exploit the ignorance of the general public and the media in order to attain a tighter and tighter hold on the electronics market. Through this case, the members of the DVDCCA have managed to protect their collective monopolistic interest in the DVD player market. How do we convince a media brainwashed public and a buzzword brainwashed judicial system that this sort of anticapitalist behavior is really going on? The most frustrating part, it seems to me, is that this is plainly obvious to most of us, but not so for the rest of the world. It's a feeling that reinforces the minority nature of geek culture in my mind.
How do we stop multinational corporations from unethically twisting the facts and lying to the media? How do we prevent DvDCCA members from leveraging monopoly control over the means to access their media? We can't. Not right now. DeCSS mirrors won't do it. Petitions and flyers won't do it. But as we, who represent the forefront of the beginning technological revolution, can do something about it, eventually.
As more and more people who understant the issues as well as the technology enter into the technology market, there will be more room for such confrontations on a larger, corporate scale. We, the nerd culture, can be responsible for changing the way technology is marketed. But that means we have to act. Is it possible that nerds and hackers will be the driving force to stimulate the stagnant and apathetic nature that is American politics today? I think we will be, and I think that is the answer. We have the knowledge and the power to change what it is going on though our work, through our expression. We must leverage that power to fight for what's right converning our medium, The Allmighty Bit.
...but software IS expression! (Score:3)
You're correct. The case that jumps to my mind is Bernstein v. US DOJ. A college professor was prohibited from posting to the WWW the source code to programs in his class.
US Judge Marilyn Patel ruled that source code is speech, and that not allowing it to be posted to the internet is unconstitutional prior restraint of speech.
The_Morlock
Re:Judge considers even playing a DVD Illegal (Score:4)
1) how can something like reverse engineering of (for example) Intel's chipset be possible, if its actually providing a place to play digital content (i.e. Windows, and its attendant apps)and obviously, they wouldn't want to you to copy the 'playing' mechanism?
2) Is this law retroactive to inventions that existed before the law's creation? (DVD predates DMCA, right?)
IA(definitely)NAL, and I'm feeling it right now.
-pbk
Re:Unbelivable.. (Score:2)
-- iCEBaLM
You CAN legally play DVDs under Linux (Score:2)
Ideas for a Boycott (Score:2)
Well, I know what I want, but I can't speak for everyone. I'd like some respectable person who could organize something like this to set up a list of demands. I will, however, give my own suggestions:
1. An end to regional coding.
2. An affirmation of the right to fair use.
3. An end to product tying.
4. The repeal of the Digital Millenium Copyright Act.
5. The break up of the DVD CCA and future administration of the CSS to go to a non-profit entity which will administer it in the best interests of the consumer.
6. For all defendants in this case to have their legal bills paid by the MPAA, plus any damages that resulted from the MPAA's actions.
I'll admit, some may think we don't need all these demands to be met, and some may think other demands need to be added. I just think we have to have demands so that people involved in the boycott can see we are aiming for a definite goal.
I hope that we will beat this either through legal means, like the courts or legislature, or through economic pressure. If not, the future will be bleak indeed.
I urge everyone to boycott, remember, your rights are more important than whatever entertainment you would be buying. The MPAA and DVD CCA must be beaten on this one.
Re:Getting Grass-Roots Support May Help (Score:2)
I dunno. I would guess that the flyer is too political to work. Show that to the average Joe and he'll see it as the same kind of shady mod-chip deal. "The evil MPAA wants to stop us from playing our pirated movies.".
A better flyer would explain the deeper issues. What is "fair use", why was DeCSS created, what other option to Linux users exists? What is reverse engineering?
Funny grey areas (Score:2)
This is a weird area in other copyrighted media. When I was in the campus film series, we would get 16mm movies shipped to us by a distribution company. The rental of the film included renting the right to show it to a mass audience and charge. One time there was a shipping problem that prevented the film from being delivered, and apparently, the company just faxed us a copy of our rental agreement and told us to rent the video like we would to view it privately and just do a mass showing of it (the company also rented videos, and we had access to a room with an overhead video projecter, so it worked.) Point is that even though the physical tape we had rented had copyright protection warnings all over it, we were legally allowed to mass view that copy because we had legal permission to mass veiw "a" copy of that film. Weird.
CSS as art? My artistic contribution to the cause (Score:3)
I converted the css code to an html file that represents the OpenDVD logo. Take a look and see what you think. I'm not trying to violate the DMCA or anything, I'm just trying to express thoughts through what I consider to be art.
Here it is:
http://www.enel.ucalgary.ca/~mastracc/opendvd.h
Thoughts?
Free speech != free speech (Score:2)
Lets see...
"The answer my friend, is blowing in the wind, the answer is blowing in the wind..."
Somehow I don't think we'll "overcome" this one before we start marching and chain ourselves to the tree^H^H^H^Htanks
Re:Need to lobby for a Free Software Exception (Score:2)
You may think and believe that free software is superior to other software, but the truth is, it is legally (and metaphysically) no different from other software. By making an exception for free software, you have introduced yet another special dispensation into law so that you do not the follow the rules everyone else does.
"I don't want to go back to a world where computing isn't fun."
What isn't fun is a computing world where you think it's okay to impose your shoulds, woulds and oughttos and the rest of us.
Re:No, the ruling is not correct. (Score:2)
As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.29 Courts that have considered the question whether program code is constitutionally protected expression have divided on the point.[30] Nevertheless, this Court assumes for purposes of this motion, although it does not decide, that even the executable code is sufficiently expressive to merit some constitutional protection. That, however, is only the beginning of the analysis.
30 Compare Bernstein v. United States Dept. of Justice, 176 F.3d 1132, 1141(holding that encryption software in source code form is constitutionally protected expression but expressing no opinion with respect to object code), rehearing in banc granted, opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999); with Junger v. Daley, 8 F. Supp.2d 708, 715-18 (N.D. Ohio 1998) (holding that encryption software in source code form is functional rather than expressive and therefore not protected speech); Karn v. United States Dept. of State, 925 F. Supp. 1, 9 n.19 (D. D.C. 1996) (assuming that source code is protected speech when joined with commentary, but stating that source code alone is "merely a means of commanding a computer to perform a function''); R. Polk Wagner, The Medium Is the Mistake: The Law of Software for the First Amendment, 51 STAN. L. REV. 387 (1999) (arguing that focus of analysis in software cases should be on whether government interests supporting regulation are related to suppression of expression, not on whether code itself is intended to be or understood as expressive); Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147, 236-37 (1998) ("most executable software is best treated as a virtual machine rather than as protected expression'').
We may not like it, but despite the victories, the issue is far from decided with respect to the law.
Re:Outside USA - are we making a good case? (Score:4)
Think about it - the plaintiffs have a lot of money. You know they have five-star lawyers, and they may have even had a certain (limited) amount of sway over the court itself. Needless to say, anyone from the industry who was expecting to speak at any of the hearings has been thoroughly briefed by the legal team - ensuring that everyone on the plaintiff's side tells the same story in the same way, relying on the same legal precedents and avoiding contradiction altogether.
Now, I have no way of knowing if the defendants are really disorganized or poorly represented - but my impressions on this are based on the judge's statements and have gradually built into fears about this case.
Sadly, it's not the judge's responsibility to relate to every subculture's ideas of right and wrong - it wouldn't be practical anyway, and we're a bit egocentric to think that a judge is un-knowledgable about the subject of computers if he/she doesn't agree with us. I'm concerned the defendants just aren't making a good enough case at this point. I really, really hope the defense is gonna wise up, if this is really the problem for them (and us) that I think it is.
It seems as though the defendants need to demonstrate that this <b>is</b> an interoperability issue, <b>why</b> DMCA is a bad thing... support their positions...
I don't relish the idea of losing this one.
---GEC
(If DeCSS is outlawed, only outlaws will have DeCSS)
Re:Need to lobby for a Free Software Exception (Score:2)
If you see a hundred people living in slavery, do advocate to free just two of them who happen to be your friends? No! You free them all! In the same way, you don't solve this legal situation by exempting free software while requiring the rest to continue in what you call an injustice. No, you work to exempt EVERYONE!
If it's moral for you to write a OSS DeCSS program, then it's moral for me to write a binary only DeCSS program.
Sheesh! Next thing you know someone will be advocating the imprisonment of shareware authors. All hail the revolution and pass me another noose.
Re:Need to lobby for a Free Software Exception (Score:2)
Re:Well everyone must be thinking (Score:2)
IANAL, but presumption of innocence only applies to criminal cases, whereas this is a civil suit.
3) This one is a complete judgement call.
Not really, the DMCA actually does say "computer programs" when it refers to reverse engineering, which a DVD data file isn't. So the judge is actually legally correct on this point.
However, saying that "it runs on Windows, so that's what you Linux guys oughta use" is truly moronic and has no basis in law.
More points to ponder... (Score:5)
Firstly, it most certainly is not the only way to pirate DVDs, but, as at least one pirate admitted, it certainly is the easiest. However, the judge's wording implies that this is DeCSS's only purpose. He further states that no evidence to the contrary (that DeCSS is used for linux-interoperability) has been presented. I'd like to know why not. Did the defense really think the judge would take their word for it? Where was the laptop running linux that couldn't play DVDs until software based on DeCSS was installed?
This makes it painfully obvious that the judge has no understanding of the Open Source movement. Of course there is no commercially signigicant purpose; who's going to pay for OSS when it is freely (speech AND beer) available? Besides, the primary intent of DeCSS (unless you believe the judge) is to allow viewing DVDs that have already been bought under linux.
But wait, the judge doesn't buy the whole linux argument in the first place:
[A]ssuming that DeCSS runs under Linux...??? Where has this guy been??? Oh, wait, I bet he doesn't read SlashDot, does he? Anyway, if the defense had done its job, there would be no assuming this or that about DeCSS and Linux. Secondly, he completely misses the point about programs "running" under operating systems. It's computer code. Download it, compile it, and *poof* it runs on your computer. (The complete lack of proprietary MicroSoft foundation classes, libraries and 'extensions' of standards might be a clue that it was developed in a *nix environment!) Finally, where does he get off deciding what was going through the head of the anonymous German hacker who actually wrote the program? How does he know the intent with which the program was developed? Sure, some people may use the program for illegal gains, but that isn't what the judge is apparently concerned about here. Apparently, I can claim that I developed something with one purpose in mind, but if someone else finds a malicious use for it, that is somehow my fault. I think not! Otherwise, gun and/or bullet manufacturers would be held accountable for every firearms-related homicide.
Finally, I think the judge misses the point in the paragraph in which he quotes the following from the DMCA:
This statement specifically refers to reverse engineering computer codes that have been legally obtained. The point of the matter is that it is not clear whether it was an encryption algorithm that was reverse engineered or if the algorithm was discovered by "hacking" the Xing encoder. Maybe this point wasn't made clear enough in the hearing. (I won't even go into the argument about the legal status of click-through licenses. Suffice it to say that I've never read through one... I'll just make this point: how does paragraph reconcile with licenses explicitly forbidding reverse engineering? Which right trumps the other?)
Overall, from the judge's repudiation of the defendants' claims, it is clear that 1) the judge knows little about technology and 2) the defense did little in the courtroom to back up their assertions. Since this was merely the issuance of preliminary injunction, there will be further opportunities to back up the claims of the defense. I just hope they are more prepared then than they were last month.
Of course, having more than one weekend notice might help matters a bit...
Eric
Re:Mostly, I'd agree, except (Score:4)
To copy a DVD successfully to another disc capable of being played in a DVD player you would NOT use DeCSS AT ALL, and here is why:
1. Consumer available DVD blank discs currently only hold 4 GIG of data, most DVD movies run about 6 to 10 GIG.
2. Consumer available DVD blank discs have the tracks where the DVD player expects the CSS keys to be PRE-WRITTEN with 0's.
3. You don't want to break the encryption, you NEED the encryption IN PLACE, as DVD players will NOT play unencrypted DVD movies, they expect CSS and will not play if it is not there.
The absolute only way to copy a DVD disc so that you have two DVD player readable identical discs is to get your own stamping machine, and you would make a bit-for-bit copy with the encryption IN PLACE, as DVD players expect CSS to be there, these run into thousands of dollars, not really economical if you're only making a few copies for friends huh? However they are economical with big pirates in Asia for instance.
-- iCEBaLM
Re:CSS as art? My artistic contribution to the cau (Score:3)
Ok, what if we took the source, and encoded it with a scheme SIMILAR to CSS. THEN distributed it widely witout keys, making sure that it's true nature (the source) is well known.
The source is intellectual property. If the MPAA's hired goons want to prove that the source is contained withing this stream of encrypted characters, they would have to violate the DMCA in order to get inside.
What do we think?
This is probably posted too late to get moderated up, but hopefully someone with some insight will see it way down here. (-;
Re:Code Not a Form of Expression?! (Score:3)
Bah! Code has to be a form of personal expression and therefore should be protected by First Amendment.
You should read that First Amendment again. It protects freedom of speech. Over the last generation, the courts have read a lot of meaning into that phrase, but to my knowledge they haven't gone anywhere near establishing protection for something as vague, broad, or open ended as personal expression. Colin Ferguson sure didn't find any Constitutional protection for his personal expression of rage when he shot several passengers on a train.
The small amount of case law supporting the position that source == speech is very fresh and tenuous. It's worthwhile for the defendants to cite any precedent which supports their side, but it's a mistake to rely on source == speech as the central support for their defense.
Re:Code Not a Form of Expression?! (Score:5)
And I don't buy the argument about programs being used to infringe on intellectual property rights. Xerox machines and tape records can be used to infringe on IP rights, should be ban those too?
Re:Need to lobby for a Free Software Exception (Score:3)
The question is not one of morality. The question is one of legality. It is presently illegal to write an open source DeCSS, without explicit permission from DVD CAA -- permission which, frankly, I don't see them ever giving, because their technology relies on secrecy in order to "protect" anything.
It gets worse, by the way. You might not realize this, but this same ruling implies that Microsoft can go after anyone who tries to decode Word file formats. The file formats, after all, are not software -- they are a technology. Or at least that's how they could argue it. Once that's done, kiss KOffice and Gnome Office goodbye.
Returning to morality for a second -- if it is moral for me to write a closed-source version of a program, then is it legal for me to write an open-source version of that same program? Under the current system, the latter should be disallowed in many cases.
Re:Kaplan may be the best judge for this case (Score:4)
There's absolutely no basis to challange this decision on appeal. This is just a preliminary ruling. One based on no evidence from the defense. The defense will have an opportunity to present a case with evidence and withnesses.
Furthermore, the EFF has been given a big whack with the cluestick on where to take this case. In reading the judgement, there is definately room to convince this judge of the merits of our case.
A friend of mine who works for the Federal Court system tells me that Judge Kaplan is one of the technically savvy judges in the district. Furthermore, he also tends toward the little guy.
Don't get me wrong, but there is enough wiggle room in this decision for the EFF to put up a good defense and get it past this Judge. If necessary, there is time later to discuss these same issues again in appeal.
This case will be heard.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Re:Common sence? Don't identify yourself. (Score:3)
Another reason to take responsibility for your code (besides the obvious ethics of taking responsibility for your actions) has to do with the way the US legal system works. Disclaimer: I'm not a lawyer so I could be wrong about part of this. By putting their names on DeCSS people allow themselves to be named as defendants in the suit. Many of us feel that the actions of the MPAA are unethical, and not entirely legal. This gives those named a chance to challenge the MPAA on legal grounds.
I think this is a clear case of large companies exerting FAR too much influence on government at the expense of private citizens. It is also evidence of the inadequacy of current courts to deal with technological issues. Reading the opinion, it was blatantly obvious that the Judge knew almost nothing about what he was talking about.
Unfortunately, from the opinion, it also sounded to me like the defense attourneys were not overly competent either. I find the whole situation to be incredibly frustrating.
Cheers,
Perrin.
Time to stop whining and start working (Score:5)
The Current Situation
The judge is not clueless, and the lawyers from DVD CAA are not liars -- In this case we (the open source community) simply blew it by not figuring out how to deploy the resources to defend ourselves.
Brief credentials statement: I Am Not A Lawyer, Nor Do I Play One On Television; but I was a courts/copshop reporter for several years in the 1980's and have the general knowledge of copyright/IP that a journalist and a programmer picks up.
Read the transcript of the hearing, then the decision. The defendants and their lawyers were given nearly a week's notice of the hearing and arrived badly organized and with little if any evidence. As Judge Levin noted (by my count) eight different times in his decision, defendants presented no evidence to back up their arguments, while the plaintiffs (DVD CAA) had lots, including, IIRC, the transcripts of discussions here on Slashdot. The defense was just not ready to do the job. Two thirds of the legal staff there was from EFF in one form or another, but from the transcript it looks like they had not been able to spend a lot of time on the specific case ahead of time -- Judge Levin found (for good reason in some cases) a number of their arguments irrelevant to what he had to decide.
In reaching the decision, Judge Levin pointed out real weak points in the defence case. The core problem is the "reverse engineering" argument that gets used around here a lot. Here's the relevant portion of the opinion:
Pretty devastating, legally. They really didn't present any evidence to support their arguments, but the defendants lawyers did apparently admit that DeCSS worked on Windows as well (is this true?) so is not exclusive to Linux (so much for it being just for playing DVDs on Linux), and the reverse engineering exemption is explicitly not applicable here.
Our Goals
Do we want to get a Linux DVD player, or do we want to get rid of or modify the new copyright law? These are two different goals, with two different sets of actions to carry them out. As others have pointed out, if all we want is Linux DVD, then it is probably only a matter of money -- sombody call Larry at VALinux.
Action
If you want to change the law, learn and use the tools that are needed to do the job.
Groups of people get the law changed all the time -- but it takes attention to detail, advanced social skills, persistence, and some money. We can do it if we really want to.
Are we going to defend pirates now? (Score:4)
Can anyone really claim that a site with headlines like:
How to find/trade FREE DVD Movies online
and
What you need to trade Moviez online
is only interested in playback under linux? This is a site about pirating!
I'm all for DeCSS distribution, but this site isn't helping our cause. Championing this case is like the NRA championing a murderer as an example of responsible gun ownership.
COPY protection != COPYRIGHT protection (Score:3)
First, there is a lot of confusion here between the notions of COPY protection, and COPYRIGHT protection. This is no accident. One of the tactics of the MPAA is to attempt to equate the two in people's minds. To say, in effect, "We must have copy protection, otherwise our copyrights are unprotected." This is COMPLETELY untrue. Their copyrights are every bit as protected now as they were before DeCSS was written. If you make an unauthorized copy of a DVD, their legal standing to sue you is unchanged by the existance of DeCSS.
COPYRIGHT protection is a monopoly, granted by the government, giving you the exclusive legal right to duplicate a work.
COPY protection is a technological measure used to prevent third parties from duplicating a work.
You can have copy protection on something that is not copyrighted, and vice versa. This does NOT equate the two concepts, as the MPAA would like you to believe. Please do not play into their hands by accepting their distortion and melding of the two, completely independant concepts of copyright and copy protection.
Second, the DVD consortium had two options in the design of CSS. They could have either based their copy protection system on a patent, and disclosed the patent. This would have prevented third parties from legally creating their own DVD players. Instead they chose to rely on keeping their copy protection a trade secret. Unfortunately, they were not successful in maintaining their trade secret. Now they are arguing that they should receive patent-like protection for their broken trade secret.
They should not receive this protection because they did not disclose their invention. This is the entire purpose of a patent. You have a choice whether to publish, and receive a government monopoly, or maintain the secret, and take your chances that someone will reverse-engineer your trade secrets. The fact that the DVD consortium has based their entire copy protection on a poorly-kept trade secret should not change the legal status of that trade secret. It was broken, and the reverse-engineered DVD specification has entered the public domain.
If this interpretation of the DMCA is allowed to stand, it will in fact eliminate the entire concept of fair use. Given that traditional media will be eventually replaced by digital media, all of which will be presumably copy-protection enabled, under this interpretation it will become ILLEGAL to attempt to save a web page, capture a video or audio stream, or even videotape a broadcast, so long as the content provider has made even the most basic, ineffective effort to hinder you from doing so.
The DCMA has a lot of bad language. One of the worst bits is the notion of a device "effectively" controlling access to a copyrighted work. What does it mean to "effectively" control access? CSS "effectively" controlled access until DeCSS was invented. Now CSS is an ineffective protection scheme. The mere fact that a television broadcast was transmitted and received in real time "effectively" prevented duplication of television programs, until the VCR was invented. Should the VCR have been made illegal because it overrode an "effective" copy-protection method? Should the photocopier have been outlawed because it overrode the "effective" copy-protection method of a book being printed on paper? How much poorer our culture would have been.
This is the real threat posed by this court case. It is VERY important. It is the most important case I have seen in years. The rulings on this case will determine the very meaning of fair use in the digital age. It will determine whether or not the DCMA has eliminated the concept of fair use, as the MPAA is claiming, or not.
Fundamental Inconsistencies in this Opinion (Score:3)
The opinion inconsistently found BOTH that: (1) DMCA anti-circumvention is constitutional because the Copyright Act has been found to be constitutional; and (2) Fair Use does not apply because DMCA anti-circumvention provision does not incorporate the Copyright Act provisions for a fair use defense.
It is certainly the case that the Courts have been kind to Copyright laws when defendants have raised First Amendment-based defenses, and in particular, that the Courts have found that the LIMITED monopoly granted by the Copyright Act does not fall afoul of the First Amendment (particularly given the force of Article I, Section 8 -- the Copyright Clause).
However, most judicial discussions of First Amendment constitutionality of the Copyright Act make reference to two specific facts: (i) that Copyright protects particular expressions, and does not protect ideas; and (ii) that the scope of a Copyright monopoly is limited to the extent a fair use defense is offered.
If the Court wishes to rely on this authority, it must then consider whether the DMCA protections offer both protections for Society. In fact, it fails in each case:
DMCA UNCONSTITUTIONALLY PROTECTS FOR AN UNLIMITED TERM IN PATENT-LIKE FASHION AN APPARATUS THAT MIGHT NOT ITSELF BE PATENTABLE
Let's be real, DMCA anti-circumvention protects the mechanism for protecting a work, not the work itself. DeCSS attacks the mechanism, not the work. This mechanism might be routine, un-novel and wholly obvious (hence unpatentable), yet DMCA would nevertheless protect it. And, so long as the underlying content is within its term, DMCA protects the mechanism FOREVER. (A patent would be limited to at most 20 years).
Thus, DMCA actually gives IDEA protection for the decoding apparatus for a security scheme, for an unlimited term, and (as noted below) without adequate protection for fair use. Indeed, I think an even stronger argument of unconstitutionality would be one based upon Article I, Section 8 -- this bill grants de facto super-patent rights (which also may not protect ideas) to an apparatus without any term limit, and thus violates the requirements of the Constitution that the grant be for a limited time.
(N.B.: I am not advising anybody to do so, I am only wishing those were the facts of this case -- it might very well be illegal to do so as this law seems to be developing in the Courts).
IF DMCA DOES NOT HAVE FAIR USE READ INTO IT BY JUDICIAL CONSTRUCTION, THEN IT IS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT BECAUSE IT DOES NOT HAVE FAIR USE LIMITATIONS.
The Fair use provisions of Section 107 were not originally made by the Congress. The Courts read them into the 1909 Copyright Act out of equitable fairness (and because of the First Amendment issues arising from suing a critic for quoting an article). Section 107 expressly stated that it did not replace, but merely codified the existing case law. If the Court decides not to read those cases into the DMCA, it can not AT THE SAME TIME, ignore the Constitutional implications on the ground that the DMCA is "just like copyright."
Again, we needn't investigate whether the DMCA is unconstitutional for these reasons -- its just that if the Court is going to rely on the similarity and Constitutional status of the Copyright Act itself under existing case law -- it must ask if DMCA satisfies those parameters.
None of the preceding is well-researched, or even carefully considered. But the inconsistency (and unfairness) of this reasoning struck even me between the eyeballs. (And you guys know what a hard-assed pro-IP guy I am.)
It already exists. (Score:4)
http://personal.sip.fi/~lm/c2txt2c/ [personal.sip.fi]
Created for precisely these reasons, actually. To demonstrate that source code is speech.
Re:Time to stop whining and start working (Score:3)
Actually, that's not correct. The initial release of DeCSS was a windows-only binary, which would rip DVDs to huge MPEGs or some other non-encrypted format. Only later was the code released and ported to Linux, where it began to be used as part of the LiViD project to create a DVD player for Linux.
This history of DeCSS could make claiming the reverse engineering exception difficult...
Re:Code Not a Form of Expression?! (Score:3)
Shooting people tends to infringe on their freedoms as well, and is therefore treated somewhat differently. If I got together a bunch of people who wanted to protest laws against assisted suicides, and shot them during an art presentation, I'd probably be arrested for murder, but at least the trial would be interesting. (Can you kill someone with their consent? Probably not, legally, but if you can prove it, it isn't murder, IMO)
However, any other "shooting people" example doesn't necessarily apply. All you're saying is that cracking wouldn't be protected speech, not coding.
You're right, source == speech isn't a tried and true defense, and I wouldn't want to use it as one. However...
Speech is speech. Transcribed speech is speech is text. Text on paper is text on a disk is speech. Speech is information. Code is information, can be spoken, and can be text on a disk... Math is not patentable, and code can be expressed as math...
The lesson, boys and girls, is to protect your code, you need to first have a recorded tape or transcription of everything you want to code in math, BNF notation, English, or some combination, until the laws and lawyers catch up with the reality of the situation, and what is obvious to the programmers.
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pb Reply or e-mail; don't vaguely moderate [152.7.41.11].
Yep, it *is* illegal (Score:4)
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The Library of Congress interpretation of the DCMA
From http://lcweb.loc.gov/copyright/legislation/dmca.p
Emphasis changed for this audience.
Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention itself, the provision prohibits circumvention in the first category of technological measures, but not the second.
This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumvention of a technological measure that prevents copying . By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized acess to a work, the act of circumventing of a technological measure to gain access is prohibited.
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Later on, seven exceptions to the circumvent-to-view are mentioned -- the right of the Library of Congress to make exceptions through rule-making; for library, archive, and educational nonprofits to decide if they want to buy the work; reverse engineering of computer programs for compatibility purposes; encryption research; protection of minors; personal privacy; and secruity testing.
Frankly, if my interpretation of the LoC's interpretation of the DMCA is correct, our best argument is that css-auth/DeCSS has as its primary purpose the creation of backup copies, not the playing of DVDs.
Steven E. Ehrbar