NY DeCSS Case: Final Briefs Online 157
Iambic Pentametor writes "Defendants' brief is
here
and plaintiffs' is
here.
Openlaw has very comprehensive coverage including an ongoing discussion commenting on the briefs. The decision by Judge Kaplan is expected probably within a week."
Net censorship (Score:5)
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Huzzah! Huzzah! (Score:1)
deCSS 0.1 ? (Score:1)
Re:Huzzah! Huzzah! (Score:1)
But... what will it do? (Score:4)
If Kaplan rules in favor of the defendants, does that mean that the aggressors will be forced to pay the legal fees of the defense? If not, this whole thing is a lose-lose situation.
Even if the studios end up on the losing side, they just go play a couple rounds of golf and laugh about it over drinks. The defendants, on the other hand, will be stuck with hundreds of thousands of dollars in legal fees.
This case is far from over. It hasn't gotten bloody yet.
Re:Huzzah! Huzzah! (Score:1)
Are you still touching me?
*click* *click* *click*
My hovercraft is full of eels...
Re:But... what will it do? (Score:1)
I was under the impression that the EFF was representing the defendants.
Re:Net censorship (Score:1)
Is Bill Gates Next? (Score:4)
Being with you, it's just one epiphany after another
Re:But... what will it do? (Score:3)
Well, there are more facets of this case than just the monetary value alone. As far as the legal fees go, I have to agree that the legal fees are pocket change for the studios whereas the EFF is most likely straining its resources to be able to pull this off.
However, there is much more at stake here than just legal fees, and that is legal precedent. If the EFF wins in this case, the studios (and many other people) will lose out in potential profits and the EFF will have made a massive step forward in our rights to reverse engineering and fair use (something which is abused both by consumers and by the corporations in my humble opinion) -- and I suppose we could throw in free speech as well.
As interesting as the slow legal system is... (Score:2)
Isn't slashdot about: "here's a new technology, here's a new idea, here's a new discovery, here's a review of the above."?
Yes, court cases fall into this somewhat. Like: The idea that napster is liable for the actions of its users, or the idea that reversing/discovering and algorithm could be considered "criminal" by a country you don't even live in and may never have ever visited, and that you could get a ton of flak for it.
But the fact that the case is now being decided uppon by the judge, is something people who wanted to track the case could get from reuters or cnn [ouch the bias, it hurts it hurts].
I mean yeah, its great taht we're days from finding out, but this may be a case where people sort of figured we'd find out sometime, and when that happens it'd be interesting to know how it went down.
I vote that US coporate conglomerates should have no right mandating how or punishing for the way someone elsewhere in the world thinks.
-Daniel
Fallback to UCITA? (Score:3)
1. UCITA legitimizes shrinkwrap/clickwrap agreements as enforceable contracts.
2. DVDs are shrink-wrapped.
3. Dvds are software (bits is bits, right?).
Therefore, all MPAA has to do is start including a license agreement with DVD, which you accept by breaking the shrinkwrap, which states that you are voluntarily surrendering your right to use the software on anything other thatn a licensed playback device. Presto! Instant contract. And contract law trumps pretty much everything.
Lawyers, am I right, or just blowing smoke?
Re:Is Bill Gates Next? (Score:1)
Bill - aka taniwha
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Fair use == no regional encoding?? (Score:4)
Plaintiffs allege that privately watching a purchased movie using a disapproved player is a violation of the copyright owner's legal rights; that the mere existence of a Linux DVD player which allows one to watch legitimate movies purchased anywhere on the globe is actionable. We hope that this Court will find that legitimate holders of copyrighted works have an unfettered legal right to privately experience those works (in addition to any fair use rights they may have).
IANAL, but it seems that (indirectly) the EFF is also arguing against regional encoding, in addition to everything ELSE they cover. In essence, if you buy this disc, you should be able to watch it everywhere you'd could possibly desire to. This rocks.
Re:But... what will it do? (Score:1)
Wait one damn minute here (Score:4)
We agree with plaintiffs and the Court that the authority of the copyright owner is a matter of law, not a matter of fact.
Am I reading this correctly?
That they actually acknowledge that copyrights, et. al. are actually legal fiction that is foisted upon the public at large?
Wow.
Precedent (Score:4)
Short answer: Precedent. Already there's caselaw from the Sixth and Ninth Circuits which holds that, in some instances, computer source code can be Constitutionally-protected speech. These cases have revolved only around cryptographic code, though; DeCSS is the first case where computer source code, without any qualifications, has been presented as warranting First Amendment protections.
If the judge rules (as I expect he will) that DeCSS possesses expressive content, a lot of the DMCA will be in jeopardy, and maybe UCITA, too. We (the hacker/geek community) will now have three different legal precedents to stand on in the event that future lawsuits are filed against us. "Don't like our programs?" we can say. "Tough luck! Free Software is Free Speech!"
This will scare the hell out of half the intellectual-property lawyers in the country, and will make the other half giggle with delight.
I don't like 2600. I think that Eric Corley/Emmanuel Goldstein is, mostly, a boil on the ass of the community. But if he gets the right to freely talk about DeCSS and how to circumvent access controls on DVDs (probably the only thing he and I will ever agree on), then I get the right to freely talk about things I find interesting which the Government would rather I didn't.
That, to me, is the most important thing which is coming out of the 2600 trial. I don't give half a damn what happens to Goldstein. I give a damn what happens to me. And if the law will protect Goldstein, how much more will it protect me?
This is the same logic Larry Flynt used in his First Amendment trial. It was good logic then, and it's good logic now.
Re:Fallback to UCITA? (Score:1)
That will not work for them. Why you ask, because the software will still be allowed to exist because of the older DVDs that are out there which should be able to "grandfather" the new licenses. Thats how I would take it atleast.
so... (Score:1)
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Re:Is Bill Gates Next? (Score:1)
Anyone remember this?
Re:But... what will it do? (Score:1)
Bill - aka taniwha
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Re:Is Bill Gates Next? (Score:4)
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Just blowing smoke (Score:2)
Nope. A shrinkwrap license has never been tested in a serious court case. Given that the "shrinkwrap" approach runs counter to two major currents of contract law { (1) a contract is unenforceable if informed consent is absent (2) shrinkwrap license seems to violate consumer protection laws of many states} , I wouldn't bet that any of these shrinkwrap approaches would survive a serious legal assault
Ha (Score:1)
Re:Is Bill Gates Next? (Score:3)
<cynicism=on>
Of course, when individuals and small companies whine about losing money because of a large corporation's f**kup, nothing happens.
When a big honkin' group (e.g. RIAA, MPAA) whines about possibly losing money because of a little program that subverts a monopolization technique, the consumer gets the shaft.
</cynicism>
*-blatant exaggeration, but if the MPAA/RIAA can do it, why can't I?
Re:Is Bill Gates Next? (Score:1)
Let's look at the possibilites here (Score:5)
#1. Defendants Win:
The immediate result is widespread beer-drenched parties thrown by open-source/hacker/free-speech types, who cook hamburgers and use the remaining charcoal to burn record execs in effigy. The following day not only is DeCSS available everywhere, it also has a user friendly interface and over 15,000 skins. Within 48 hours there are over 1,500 posts about the subject on slashdot.
#1. Plaintifs Win:
The immediate result is widespread beer-drenched parties thrown by anyone who receives money from the movie industry. During the party the execs start to plan a "Running Man" type picture staring the 2600 crew (which ends with "that bastard Goldstien" being eaten alive by his own computer. The following day there are several thousand people of varying ages either in jail, or on the run trying to avoid incarceration. Within 48 hours there are over 1000 posts about the subject on slashdot (There would be more, but there's only so much bandwidth out of Canada).
#3. One side wins, the other appeals:
The immediate result everyone bitches about the ruling at beer-drenched parties. The following day there are over 1,500 posts about this subject on slashdot.
Bottom line? This lawsuit is nothing but a tool in the conspiracy by Hemos to raise Slashdot traffic. You heard it here first!
The Midnight Watch - All the news that's fit to ridicule:
Re:Fallback to UCITA? (Score:2)
A win here would (ideally) say that First Amendment requires that copyright be limited by fair use. Then, the same limitations should apply whether that copyright was protected by code or by contract.
OBTools (Score:1)
As I recall shortly after this product's release a suit was avoided by discontinuing this copy feature.
Back then software makers were fewer, and you had to pirate based on word of mouth not leaching from some FTP site somewhere - now companies want more money than ever and have more money at their disposal to go after (and here's the key word) specific copying tools.
By this I mean you can buy a CD Burner, and CDRs, and floppy disks by the arm-full and get really good at copying files (copy a:\. b: would be cleaner than the origonl poster, but as the one reply states diskcopy is cleaner), but those are all general purpose, multi-use types. When you start releasing software to copy a specific area of things (say Maxis' The Sims) you tend to set off the specific maker (Maxis) and they will most likely look at you in a less-than-positive way.
In this case the things up for grabs to be copied are more than just one title but it still pokes in the ribs of a single entity.
Re:DeCSS is cool (Score:2)
Re:Fair use == no regional encoding?? (Score:1)
They should, but methinks it'd have to be appealed all the way to the World Court -- regional encoding is a violation of the world trade laws (don't ask me which ones). Anyone well-versed in international trade law please clarify.
Re:Wait one damn minute here (Score:2)
Careful here - lawyers don't mean what you and I mean by "fact" and "law." Substituting "adjudication" and "evidence" for "law" and "fact" gets closer to the conventional meanings.
By way of example, consider the Microsoft anti-trust case. While the entire finding is merely the opinion of one man (Judge Jackson), the findings of law are appealable, but the findings of fact basically are not.
Re:But... what will it do? (Score:1)
Maybe I'm just rooting for the underdog... (Score:1)
Judges and Constitutionality (Score:5)
We hear about Supreme Court decisions because the Supreme Court's jurisdiction is the entire United States, plus all of its territories and holdings. Appellate decisions only affect a few states; District and Magisterial decisions only affect the district in which they preside.
For instance, in Bernstein v. US, coming out of California District Court, District Judge Marilyn Patel declared certain portions of the ITAR/EAR to be unconstitutional. The very instant Judge Patel entered her ruling, those unconstitutional portions of ITAR/EAR were annulled--in fact, the instant she entered her ruling, those portions of ITAR/EAR were retroactively declared to have never existed. (Legally, unconstitutional laws are void "ab initio"--"from the very beginning". It's as if the laws were never passed.)
At some level of the Executive Branch, it was decided to appeal this decision. It went from a California District court to the Ninth Circuit Court of Appeals, which covers most of the West Coast. The Ninth Circuit Court of Appeals affirmed Judge Patel's ruling. Suddenly, those portions of ITAR/EAR were null and void throughout the entire Ninth Circuit.
Had the Executive Branch appealed the decision to the Supreme Court, and the Supreme Court heard the case, and the Supreme Court affirmed Judge Patel's ruling, those portions of ITAR/EAR would have become null and void throughout the entire United States, its territories and holdings.
Blood in the courts (Score:2)
But, part of large corporate strategy is to run up legal bills. This seems like Mattel's legal strategy. If MPAA sends a nasty note to an ISP, they will shut down the site just to avoid spending thousands on a lawyer.
Re:Is Bill Gates Next? (Score:2)
Could they sue Gates? No. Why? Gates is rich.
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No wonder the MPAA site is so slooowww... (Score:1)
www.mpaa.org is running Microsoft-IIS/5.0 on Windows 2000
Re:But... what will it do? (Score:1)
Sorry.
Bill - aka taniwha
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Summary (Score:3)
- Defendant didn't prove that DeCSS is widely available
- Defendant didn't prove that DeCSS would become widely available
- Plaintiff will be really annoyed if defendant wins.
Defendant's points:
- DeCSS provides additional fair use of legitimately obtained copyrighted products
- Nobody has EVER challenged the right of the purchaser to reasonably use a purchased work
- Plaintiff has not shown in any way that DeCSS has affected DVD piracy
- The DeCSS program is a 1st-Amendment-protected description of a scientific process.
Sounds like a slam-dunk for the defense.
Re:Fallback to UCITA? (Score:1)
As a more fundamental matter, even with UCITA shrink wrap contracts may still be invalid. You didn't know and couldn't know the licence before you agreed to the sale, so you never agreed to those terms, hence they are not part of the contract.
Now UCITA tries to get around this by declaring the agreement occured after you opened the shrink wrap because you have the right to return it. Fair enough, but only if returns of opened media are accepted. They are not!
So if you are truly worried about a EULA, or somesuch, go to a discounter such as BestBuy. Be on your best behaviour. Get the package/work and ask if you can open it prior to sale. The store will tell you no. Buy it anyways. Open it, read the EULA and try to immediately return it for cash. They will say no. Show them the return clause. They will still say no. Say thank you.
IANAL, but the EULA is now no longer applicable to you. The company did not honor it's own EULA and cannot maintain the fiction that you agreed to the EULA because they gave you an opportunity to object.
Re:Is Bill Gates Next? (Score:1)
First thing you learn in law school: don't sue poor people.
So what? (Score:1)
If the EFF/2600 win this case, it will set precedents that software is speech, and reverse engineering is OK. Those precedents are the reason this case is so important.
What the DMCA needs... (Score:2)
Unfortunately, the statute could easily be read either way...
It's pretty obvious that it's in the best interest of the MPAA (and other copyright-holding entities) to have as much control as possible over those purchasing and using their content. They have no incentive, financial or otherwise, to preserve the fair use rights of the public.
The interpretation of DMCA advocated by the MPAA's counsel hands them that control on a silver platter, and allows them to prevent both copyright infringement and fair use with the same protection tool.
That's the basic fault of the DMCA: it doesn't make any clear distinction between prevention from copyright infringement and prevention of legitimate fair use of copyrighted material. This is what needs to be fixed, either through the courts or through the Congress.
All we need is something that preserves the legislative protection for tools that protect copyright without affecting fair use, but removes the protection for tools that prevent both infringement and fair use. Maybe like this (of course, IANAL):
Say what?? (Score:2)
In fact, the evidence shows that the Linux argument is a red herring: DeCSS was developed for and runs under the Microsoft Windows operating system. Further, one of the creators of DeCSS, Jon Johansen, admitted that he first provided DeCSS to an Internet Relay Chat ("IRC") room, called "#pcdvd," which is not limited to users of the Linux operating system. (Tr. 632:9-14, 633:1-4 (Johansen)).
What crap is this? Is the lawyer that said it completely uninformed or does he just assume the judge and everyone else to be... The whole idea behind DeCSS was to let people watch dvds on linux, but since the player only works with windows, the necessary decryption (DeCSS) would sorta HAVE to happen with windows and not linux...
Furthermore, the guy also argues that since Johansen first provided DeCSS to an IRC chat and since IRC is not limited to linux that the whole linux fair use thing was just a cover for the nasty, sneaky little hackers...
The fair use of DeCSS is pretty obvious, and i sure hope the judge doesnt ignore it, after all, that would mean that maufactuers of CD burners, dual tape deck stereos, and vcrs can now be sued because their products can be used for "illegal duplication of copyrighted work", even though they have a whole lot of other fair uses as well...
Thoughts (Score:5)
Indeed, defendant Corley (and other defense witnesses) established that: (1) the Content Scramble System ("CSS") is a technological measure that effectively controls access to, and copying of, plaintiffs' copyrighted works...
I would say "not so effectively controls..."
Anyway, I don't have any one specific point, just some thoughts.
My first impression is that the MPAA's looks like a professional legal brief, while the EFF's looks like a dull web-page.
They cite that they have been damaged by DeCSS, because it takes from them: the assurance of protection that CSS gives to their valuable, copyrighted digital content released on DVDs.
That's pretty weak. Much like demanding that your neighbors go around handcuffed. Sure, it restricts them from doing some things, (like watching DVDs on Linux) but it affords you the assurance of protection from being punched.
They follow this by pointing out the threat, as they see it: That with increasing compression techniques (in particular DivX) and hard drive space, movies may find their way into rapid free circulation.
They have a bit of a point there, in a few years, compressed mpeg video may be tossed around like mp3s are now. I don't think that mp3s have eliminated the CD market, nor do I expect DivX to eliminate the DVD market. At the least, there's a bunch of people out there with CD players and DVD Players who don't have bitchin' computers hooked up to the net via broadband and equipped with a terabyte of drive space. Unfortunately, this is a practical argument, not a legal one. As a geek, I keep looking at it from a technological standpoint. As soon as they show you the information, (movie or song) it's yours. You can screen capture video and record audio. It's really that simple. Sure, DeCSS is much more convenient, but it's not going to make a difference as far as copying goes.
Re:DeCSS is cool (Score:1)
The first line of your post is "2600 rocks. First Post, btw." I somehow suspect the "Offtopic" moderation will hold up in m2.
And I don't have to post anonymously cuz I can't lose karma.
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Hypocrisy at play... (Score:1)
Defendants introduced no evidence to quantify the number of web sites on which the DeCSS software program is available. Although they elicited some testimony that typing the character string "DeCSS" into a search engine retrieves "a few hundred hits" (Tr. 1099:23-1100:2 (Appel)), that speculation proved to be highly misleading. As was made clear by defendants' expert, Dr. Appel -- who has specialized knowledge in browser technologies -- search engine results, by their nature, are grossly overbroad, since they do not distinguish between the appearance of articles about DeCSS or about this case, or the use of DeCSS as an acronym, on the one hand, and the appearance of the actual DeCSS software program on the other hand. (Tr. 1111:3-1112:19 (Appel)). Indeed, the only evidence of the number of sites on which DeCSS appears was elicited by plaintiffs' cross-examination of Dr. Appel, who estimated that only 20% to 30% of the 100 to 200 sites he reviewed from his own, independent search on the Internet actually made the DeCSS program available for download. Id. See also Tr. 127:15-128:6, 137:16-138:25 (Shamos, describing search that revealed "a huge number of pages that made reference to the string DeCSS," but that he only saw "a handful . . . between five and ten" which contained the source code and one with the object code). Dr. Appel explained that this results from the fact that any Internet search for "DeCSS": (1) would not provide information about the number of sites that actually have DeCSS source or object code; (2) would report sites that "just mention" DeCSS, but neither have the program nor link to the program on another site; (3) would commonly report multiple entries for different pages of the same site; and (4) would be driven by the appearance of the character string -- "DeCSS" -- that was typed in, rather than report the actual number of sites that are posting or linking to DeCSS in one form or another. (Tr. 1111:3-1114:12 (Appel)).
Are they claiming that they base their piracy statistics on actually downloading every pirated movie on the 'net??
computer code, whether source or executable... (Score:1)
Testimony concluded Tuesday in Universal v. Corley with Judge Kaplan's statement that he believed computer code, whether source or executable, is expressive speech protected by the First Amendment. This is a huge advance for the defense, although the question remains whether the speech can be prohibited under a form of intermediate scrutiny.
**Cha-Ching**
Me thinks that will be a very monumental statement in cases like this to come. That is one critical issue that has never really been ironed out byy the courts. Not being a lawyer, I'm not sure how much weight this has, but it may be big.
-Pete
Cnet says MPAA has no evidence (Score:1)
Re:Fallback to UCITA? (Score:1)
Re:Summary (Score:2)
- Plantiff has really expensive lawyers and at one point paid the judge's rent.
Not blowing smoke (Score:1)
This is similar to warranties/disclaimers on the back of a receipt -- null and void if your attention is not drawn to them before purchase.
This is true...unless it can be shown that the individual would have known about the contract. In this case, the first couple of DVDs you buy, you could get away with it...but after that, you know what to expect when you open the shrinkwrap! Therefore, a shrinkwrap license is valid, provided you've seen one before!
Re:Is Bill Gates Next? (Score:2)
Re:Not blowing smoke (Score:2)
Err....I don't think so. There's nothing to guarantee that the shrinkwrap in one DVD is exactly the same as in another DVD. Maybe you could get away with saying that for the same DVD, but even then, the licenses may change.
Re:DeCSS is cool (Score:1)
kwsNI
the plaintiffs' response to "code is speech" (Score:2)
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Re:Is Bill Gates Next? (Score:1)
First law of lawyerism, don't sue poor people. - Steve Dallas, Bloom County (I think so anyways...)
.02
My
Quux26
Re:Is Bill Gates Next? (Score:3)
It is difficult to identify any idea that the Supreme Court has rebuffed so repeatedly as the movie industry's overly agressive interpretation of intellectual property rights. Movie industry credibility on copyright should be treated like the tobacco industry on health matters: listen to what they say and believe the opposite.
Normally, one would expect a Federal Judge to identify such clear overreaching. The collective market power of the MPAA studios bears down on the DVD player market, forcing an unwanted licence down the throats of any would be competitor. The violation of antitrust laws, and the misuse of intellectual property are so obvious it shocks the conscience.
Sadly, the judge in the NY DVD case refuses to recognize these arguments, but, as he admits, his former law firm was responsible for advising Time Warner on DVD antitrust matters while the Judge practiced there. Despite this, Judge Kaplan refuses to recuse himself. No reasonable person could believe that such a judge would repudiate the prophylactic antitrust work of his own firm, and any hope of a fair judgement must be abandoned. The recent precedent in Panama v. American Tobacco Company, No. 99-30685 (5th Cir. 7/20/2000) on a very similar recusal situation only confirms that the judge should have stepped down. Fortunately, the integrity of the process the Copyright Office has been using is beyond reproach.
http://bioinformatics.u csf.edu/bwtaylor/dvd/LOC_109_RFC.txt [ucsf.edu]
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Re:Is Bill Gates Next? (Score:1)
That's what this issue is about. Fair use really isn't the issue in this case at all. The thing that's going to nail the defendants, is the DMCA provision that disallows circumventing copy protection measures (the anti-reverse-engineering clause). Brain-dead law, yes, but I don't see this judge overturning it.
Re:Is Bill Gates Next? (Score:1)
Re:Is Bill Gates Next? (Score:1)
First thing you learn in law school: don't sue poor people.
Corrollary: Poor people can't hire lawyers to fight back...
Re:Is Bill Gates Next? (Score:3)
Actually...maybe. And do you know why? Because you don't BUY software in the same way you buy a DVD. You only LICENSE the software. Now, you'll have to the EULA (which may or may not be legal; that one's still up in the air) as to whether or not it restricts your access to the software to a particular platform. But if reverse engineering is legal (always has been; still will be, if the EFF is successful w/this), and all your software does is operate WITH the software you received (you're not rewriting/reselling the original software), fair use seems to cover this.
Oh, and example: Hmmm....how about Connectix? All they do is make an emulator that (effectively) ports software from one platform to another. It's been tried, it's legal, and Sony can't do anything about it.
My briefs.... (Score:2)
Re:As interesting as the slow legal system is... (Score:2)
First, a disclaimer: I live in the United States. There. I said it.
Now, the meat: Yes,
It's been said before, but I'll say it again: if you don't want to hear about it, then don't read it. Hyperlinks don't click themselves (mostly...).
Sadly irrelevant (Score:4)
But sadly, this is all largely irrelevant to our freedoms. It may be that the defendants will win this round, and the Court will permit them and others to engineer and distribute "devices" that subvert copyright protections. But nothing in this case will mitigate the central issue: if CSS hadn't been so weak, we would all still be constrained to the MPAA's anemic idea of consumer rights.
In other words, what good will a victory here do us if IP owners like the MPAA simply protect their materials with strong encryption that isn't likely to be broken by sloppy redistributors? Remember that Jon Johansen only managed to crack CSS because a private key was accidentally left in the clear!
This is an important case as it sets precedent and could determine the viewpoint of future courts, but if this issue never returns to the courtroom because the MPAA does it right in CSS2.0, then what will it have really bought us?
-konstant
Yes! We are all individuals! I'm not!
Re:But... what will it do? (Score:2)
Re:What the DMCA needs... (Score:2)
There are a few snags in the defendants' case, though. They claim that there is no proof DeCSS has been used for piracy... Yeah, right... Of course, there are also legitimate uses. I, for one, downloaded it to read the source and learn about encryption--I don't even have a DVD player.
But then, none of this affects me, since I'm in Canada (*smirk*).
The amazing disapearing "Trade Secret" argument (Score:2)
Translation. They now accept that revers engineering a consumer product cannot no matter how difficult or complex constitute violation of a trade secret.
Of course once you get to that point they need to *own* DeCSS in order to effect any copyright control. They can't actually claim to already own it ( see Trade Secret above ) so they might try to buy it ( Fat chance after Johnny boy got a medal from his president.
The other arguments are just plain lame.
Re:What the DMCA needs... (Score:2)
I think that what you propose is impossible. You cannot prevent piracy (by a technical means) without infringing upon legitimate fair use too.
Piracy can only be prevented by
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Re:Sadly irrelevant (Score:2)
Re:Sadly irrelevant (Score:3)
A victory here will make it clear to copyright holders that the DMCA is not meant to tip the scales of Fair Use versus Copyright protection so unfairly in their favor. That is one of the biggest problems with the DMCA: by placing this lame CSS encryption on DVDs, the MPAA is now trying to claim "effective control" over the contents of the DVD. Sure, they might get it "right in CSS 2.0," but that's not the point. The point is, prior to the DMCA, they never even HAD this much control.
And they shouldn't have it today. Or ever.
DVD not covered by UCITA (Score:3)
Re:Just blowing smoke (Score:2)
They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.
Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750 [ucsf.edu], (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 [harvard.edu] (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 [harvard.edu] (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 [harvard.edu] (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640 [harvard.edu](W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 [harvard.edu] (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 [harvard.edu] (D. Utah 1997) [no contract]
While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:
Expeditors v. Official Creditors 166 F.3d 1012 [findlaw.com] (9th Cir 1999) [no contract]
Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.
The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.
The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.
There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.
I love the authority argument (Score:2)
Slam dunk! Good work, Garbus.
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Re:Wait one damn minute here (Score:2)
We agree with plaintiffs and the Court that the authority of the copyright owner is a matter of law, not a matter of fact.
Yes, this sentence can be confusing if taken out of context.
What I believe is the point here is that MPAA has failed to establish any "authority model" that applies under DMCA, other than the confusing wording of the DMCA. In this law, "authority" is never defined, but is used in determining if a "device" does any "circumvention," thus distinguishing illegal use from legal use.
If one looks only at the facts, defense does fine, because DeCSS can be used only with the title key and the player key and a valid DVD that the user purchases and wishes to play on a GNU/Linux machine.
However, MPAA wants the interpretation to be just one clause of the law and therefore not include any consideration of "fair use," even when Congress deliberately put restrictive clauses in the DMCA for that very purpose.
You can see the fallacy of doing that--look at the MPAA comparison of DeCSS to "keys" or the "numeric combination of a lock to a bank vault." Under plaintiffs' interpretation of DMCA, the physical key is equivalent to a string of numbers describing the key. They say that automobile manufacturers retain all rights to make keys to cars. They would say that a newspaper or a novel cannot publish the combination to a safe. What they are saying is that if any speech has any possible use under DMCA that they have not authorized in some way other than selling the keys, then the speech must be outlawed.
So plaintiffs' argument is circular. They never explain how authority is conveyed, unless it is by the consumer purchasing a DVD with the title keys, and a player with the player keys--which you have to do in order to use DeCSS--or how DMCA could ever retain control over all use of the keys, as for example to prevent consumers in certain regions from playing DVDs they had purchased, or to buy only DVD-CCA-authorized players and not LiViD players.
Defense retains the right to bring up these antitrust arguments later. I hope the DMCA is thrown out completely so MPAA cannot sue to restrain free speech and fair use in the future.
Re:Predictable (Score:2)
Maybe... (Score:2)
But if they do create such devices, the public could reject them, as they did Divx players, as being to constrictive and not worth buying. That said, I agree that technological means should not be allowed to violate consumer's rights any more than legislative means should be allowed to.
The key word is "Authority" (Score:3)
The participants on the Openlaw [harvard.edu] discussion list have spect a lot of time examining the meaning of the word "authority" in the context of the DCMA. In summary, the MPAA's authority model (player must be licensed) is fundamentally defective for several reasons. It dosn't operate with the authority of the copyright holder. The right is not limited in time as is copyright itself.
Authority to view the work *must* pass with first sale.
Re:Is Bill Gates Next? (Score:2)
Judge Kaplan has been on the bench since late 1994. It is questionable whether the lawyer at Kaplan's former firm who gave Time Warner advice on DVD antitrust matters did so while Kaplan practiced there, and in any event there is no antitrust issue in the DeCSS litigation. The idea that Kaplan would throw this case simply because his partner possibly gave some advice to one of the parties on fundamentally unrelated questions six years ago is not only absurd but is also gratuitously insulting to Judge Kaplan.
Ack... that would get ugly... (Score:2)
People bitch constantly about Slashdot's bias as it is. If they were to start trying to induce action in /. readers, we'd have a ton of people screaming bloody murder. I, personally, would like to see such things done. I don't consider /. to be an unbiased news source. (Actually, I can't think of any unbiased news sources.) It says what it is, right up front. News for Nerds. Stuff that matters. It was created by a couple of college guys as a place where they could have discussions of stuff that was interesting and important to them. It doesn't claim to be an unbiased news agency, although it does seem to try to be fair usually, and has increasingly done so over time.
I don't think /. should be held to the same standard that we should hold CNN or ABC to. They don't claim to exist for the same reason, and they shouldn't be treated the same. I think it would be fine for /. stories to include "what you can do" links and information. They aren't making anyone doing anything. They're just giving you useful links in case you decide to use them.
Re:Is there an "everywhere" region code? (Score:2)
And just to be a nitpicky SOB, DVD players sold in New Zealand are required by law to be capable of playing DVDs from all regions.
Boils (Score:2)
Basically, because he's misappropriating the term `hacker' and promulgating this distorted vision of hackers as being malcontents, ne'er-do-wells and geeks.
I once picked up a copy of 2600 just to see what the big fuss was about. When I leafed through it, I didn't find much that was, in my mind, hackish. There was an article about boxes and phreaking; about the NPA-NXX system of phone number allocation; about how to override the environmental controls of a Best Buy so to make everything a sweltering ninety-nine degrees.
Even though there's a disclaimer that says "2600 does not endorse any illegal activities", it's still an inescapable conclusion that most of the articles which appear in 2600 are written by petty criminals--extremely petty criminals.
There's hackish glory in knowing how phone numbers are allocated and how the NPA-NXX system works, or in knowing the security holes in a stock Solaris 2.7 installation, or--etcetera. Fill in the blank.
I work in information security IRL, and I know a lot of these things. Some of my best friends know a lot of these things. Sometimes, we sit down and have a couple of beers and talk about exploits, and even do penetration tests--against boxes we own, in highly controlled environments.
The typical 2600 article is written by, and for, frustrated techno-turks who have an axe to grind against society in some regard, and gets a vicarious thrill out of making a Best Buy a sweltering inferno for its customers. I don't see that there's anything commendable in that. I think people who do those things are criminals, hooligans and petty vandals--and I think those who encourage such behavior must shoulder some of the responsibility.
Is it legal to encourage that sort of behavior? Yes. That doesn't mean it's right.
The Oppenheimer defense ("I just built the damn thing, you're the one who's responsible for how you use it!") only works if (a) your creation has significant lawful use, and (b) you don't encourage irrational or illegal uses.
2600 claims that it doesn't encourage these uses. I think that a thorough reading of any issue will quickly show that their disclaimer is there strictly for legal protection, and they don't mean a damn word of it.
That's why I think Goldstein is a boil on the ass of the universe.
</RANT>
What "matter of law, not a matter of fact" means (Score:2)
A matter of law must be decided by a judge, a matter of fact must be decided by a jury. Agreeing with the plaintiff here means that they aren't asking for a jury's verdict on the authority of the copyright holder. Thus, they're agreeing that the judge's opinion is all that matters.
If there is some hole in that statement, perhaps someone who is a lawyer can fill it?
Nels
What if... (Score:2)
I urge every one of you to check out:
Joint Study Required by Section 104 of the Digital Millennium Copyright Act [loc.gov]
And especially Przemek Klosowski's submission.
Good luck to 2600 and the EFF!
Geist
Hmm... (Score:2)
Which is to say the number 1 reason high level languages were invented was to allow a programmer to come in 6 months after you leave the company and have a chance in hell of understanding what exactly you were doing with your code.
In other words, a compiled program might be a device, but a C program is a book.
Interesting Quote from MPAA (Score:3)
Uh-huh... So, this means that furnace heating oil should be made illegal... Who cares if it's primary purpose is to heat a house. You can:
You cannot take judicial remedies for crimes that have not yet been committed. Just as equipment with legal purposes cannot be outlawed because they can ALSO be used illegally... (Lockpicks, for example.)
The MPAA doesn't have a leg to stand on. If by some miracle they win this round, this will most certainly be struck down by a court of appeals (or the supreme court, if it gets that far.)
Re:Boils (Score:2)
After all, an ad has a significant lawful use... to be read, right?
Re:Predictable (Score:2)
I would have thought that this process would have had the same result as the analysis of Lord Dorwin's assurances in Foundation -- nothing would be left.
/.
Re:Is Bill Gates Next? (Score:2)
--
Re:Is Bill Gates Next? (Score:2)
The fact that there was overlap has been definitively established, and is not disputed by Kaplan. Why are you arguing this?
First, regardless of whether "antitrust" is an issue, it's still way to close to home. Read the case cited in the original quote (Panama v. American Tobacco).
Second, of course antitrust is an issue. The DVD-CCA is a trust weilding the market power of all major movie studios and is attempting to extend the copyright monopoly beyond it's statutory bounds to control the DVD player market.
The idea that Kaplan would throw this case simply because his partner possibly gave some advice to one of the parties on fundamentally unrelated questions six years ago is not only absurd but is also gratuitously insulting to Judge Kaplan.
The law says that a judge has a duty to proactively self-recuse if any reasonable person could believe that a conflict of interest exists. The law specifically prohibits judges from serving when a former partner was involved in a matter before them.
In the tobacco case above, the judge was an officer in an association that submitted an amicus brief in a different tobacco case. The judge took no part in the actual writing of the brief other than being an officer. The appeals court ruled this was grounds for recusal.
When did copyright turn into playbackright? (Score:3)
I think it's about time that copyright is thrown out on the basis that it's unworkable. China might even be able to get through history without ever having to implement copyright...
Re:Is Bill Gates Next? (Score:2)
in any event there is no antitrust issue in the DeCSS litigation.
How can you be so sure? The court excluded testimony intended to determine the facts on this very matter. What would you call the DVD-CCA but a "trust"?
If you read the postings to the DVD OpenLaw forum, referred to above, you will see that the movie studios have historically been prone to misuse of copyright in restraint of trade, and there is plenty of precedent.
Misuse of copyright in restraint of trade is a legitimate defense to copyright infringement charges, and DeCSS is alleged to be illegal because it enables such infringement.
MPAA asserts that DMCA gives them authority to require all DVD players to be licensed, and any use by consumers of discs and players must be controlled by DVD-CCA licenses and "authority" (separate from first sale and fair use). If the automobile industry asserted similar control over keys to cars, and sought to jail consumers who "circumvented" the authority from their trust, don't you think that would be a matter of antitrust concern?
But neither MPAA nor DVD-CCA will reveal these licenses. Judge Kaplan won't get into the matter because he is afraid testimony will force his recusal.
Likely all this will be taken up at appeal. If you have any evidence to provide please do so at that time.
Few details . . . (Score:2)
The point you make, though, is quite accurate -- since Marbury v. Madison, it has been quite clear that judicial review may occur at any level in the Article III Judiciary. The confidence Article III judges have comes, in large part, from their lifetime tenure -- arguably extant for precisely that purpose.
But don't get too hepped up by the trial court's remarks suggesting First Amendment limitations to the DMCA -- I have frequently seen judges intending to rule one way to begin by making statements suggesting he/she was leaning the other -- if only to seem more judicious.
This may be particularly true here, where the judge has been asked to recuse himself on grounds of conflicts of interest and an allegedly strong prejudice against the defendants.
Time will tell what word will come.
Heartwarming (Score:2)
Looking at the OpenLaw debate (which I can follow only about two-thirds of, being a UK lawyer and unfamiliar with the DMCA) I note that in only a couple of days m'learned colleagues have posted pages and pages of pettifogging pedantry and debate.
Ladies and gentlemen of the /. community, it is at times like these that I am truly proud of the legal community.
Re:Is Bill Gates Next? (Score:2)
1. The license agreement is a contract of adhesion, and therefore invalid in common law (except possibly, oddly, in Scotland). The software and its media are considered "yours" under conventional copyright law.
2. The original source code, and the object code are considered copyright of the publisher. Additionally the original source is a trade secret.
3. The reverse engineered or translated source, however, is your work, or the work of your software, albeit derived from the work of the original publisher.
It seems the situation is analogous to a translation of a book into another language, or a "cover" of a piece of music by a different artist. Whats the legal situation of that ?
Re:Huzzah! Huzzah! (Score:2)
Objective media report (Score:2)
-dB
Two interesting points. (Score:2)
One point about this whole case is that the DMCA out laws devices that CIRCUMVENT encryption schemes that protect copyrighted works.
DeCSS does not do this.
DeCSS DECRYPTS the encrpytion scheme.
DECRYPT does not equal CIRCUMVENT.
Another interesting quote from the MPAA's brief is this
If DeCSS is "speech" immune from any regulation, then no device that can be embodied in computer software could ever be regulated by Congress. That is clearly not the case. Indeed, Congress intended that unlawful "devices" within the meaning of the anti-trafficking provisions would include any "technology measure" meeting the statutory definition, specifically including computer code.
They are assuming what Congress meant something. Isn't that the court's job?
Silly MPAA, greedy facism is for dictators!
-Fred
Re:DeCSS is cool (Score:2)
Somewhat open to abuse though I expect
"Give the anarchist a cigarette"