Want to read Slashdot from your mobile device? Point it at m.slashdot.org and keep reading!

 



Forgot your password?
typodupeerror
The Courts Government News

Report From The 2600 Appeal Hearing 630

Yesterday in a toasty courtroom in lower Manhattan, Stanford Law School dean Kathleen Sullivan faced off against lawyers for the world's biggest movie companies and a lawyer for the U.S. Justice Department with oral arguments in the appeal of the 2600 case. One of the three judges hearing the case -- Jon Newman -- appeared to be the designated questioner. He asked nearly all of the questions in both this case and the ones heard earlier in the day. He probed both sides about equally, trying to find flaws in the arguments of whoever was speaking at the time. I'll cover the hearing below, and there's possibly a few areas where the Slashdot crowd could assist in the case.

Sullivan spoke first. She argued that since the DMCA restricts speech, under the First Amendment the government must narrowly tailor the law to only restrict those specific areas of speech that it is targeting. Furthermore, the government bears the burden of proving that the speech it is restricting is a problem in some way -- usually it does this by holding hearings, getting testimony, etc., in the process of passing a law. She noted that none of this was done for the DMCA, and that the DMCA restricts many areas of speech that cannot constitutionally be restricted.

She also made much of a rather telling fact: there is no piracy attributable to DeCSS whatsoever. Not one traditional copyright infringement has ever been attributed to DeCSS, and the movie studios admitted in the case that they could not produce even one example of an infringement due to DeCSS. (Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required, though that wasn't covered in the hearing.) But Sullivan jumped on this point for all it was worth and then some -- the judges seemed fairly skeptical about accepting it, trying to insist that widepsread and massive copyright infringement due to DeCSS must be occurring, somehow, somewhere. It just must be.

She ran into her first really hard question when she stated that computer programs were expressive, and the judge asked her to explain. Her answer was that programs were beautiful in and of themselves, that they could represent scientific research, that they could be poems, and that they could do things -- their functional nature. I felt the response was lacking. Sullivan managed to work in the recent ruckus over a Princet on scientist unable present his work due to DMCA threats, which was cunning of her. If a Slashdot reader can create a pithy and short explanation for how and why a computer program is expressive speech and/or what it expresses, it might be useful.

Sullivan also argued that under free-speech precedent, if less restrictive alternatives were available to the government and it failed to use them, the law must be overturned. The judge mentioned the Audio Home Recording Act -- the law passed in 1992 which both implemented serial-copy protection in digital audio tapes and explicitly legalized home taping. Sullivan pointed to AHRA's serial copy prevention as an example of a law which restricted copying but which was not as restrictive as the DMCA turned out to be. This argument seemed to be pretty powerful with the judge.

The next point to be discussed concerned the injunction issued by Judge Kaplan, and his written opinion in the case. The Appeals judge made the point that the injunction could not be considered to apply to anyone except the specific defendants -- that is, just because 2600 was enjoined from posting or linking to DeCSS, doesn't mean that anyone else necessarily would. On the other hand, the reasoning applied in the opinion could be assumed to apply to other U.S. citizens wanting to post DeCSS. The gist was that Sullivan couldn't argue her case as if anyone would be enjoined from linking to DeCSS, but only regarding the specific defendants that were.

Finally they got to the idea of "disseminat ion," since the DMCA prohibits dissemination of circumvention devices. What does disseminate mean on the internet? The judge and Sullivan agreed that the New York Times is in the business of disseminating information (the NYT being today's quintessential example of "the press"). The judge asked if the New York Times intends to disseminate all of the information on every page it links to in its online edition. Sullivan said yes. The judge asked if the NYT specifically intends to disseminate every bit of info on every single page that it ever links to -- again Sullivan said yes.

Assistant U.S. Attorney Daniel Alter was up next. He started with a hypothetical: What if someone developed a program that could shut off the navigation system in commercial airplanes? What if someone developed a program that could shut off smoke detectors in public buildings? Surely, he said, the government could ban the publication of programs which were a threat to people's lives. He proceeded with the standard quotable rhetoric: DeCSS is a "digital crowbar." Hey, if you're a reporter covering the case and you don't understand it, at least you got a phrase that jumped out at you screaming to be quoted.

He then got down to the meat of his argument -- that the government can regulate conduct even if there's a speech component to it. He used the example of Giboney V. Empire Storage and Ice Co., a case where picketers (a constitutionally protected activity) were successfully prevented from picketing due to the functional intent of the picketing, which was apparently to violate certain laws relating to restraint of trade. Alter argued that the DeCSS case was similar -- the intent of distributing DeCSS is to promote violations of copyright law, therefore the speech part of such distribution can be ignored by the courts and the courts can focus on regulating actions without concerning themselves about speech issues.

Alter proceeded to postulate that the government has the ability to create and regulate a market in expression, and correct any market flaws that may exist. Viewed from this vantage point, the existence of the Internet and all of those unrestricted personal computers connected to it is one large market flaw which the government has the power to correct. He used the example of must-carry laws for cable systems -- cable television must carry local broadcast channels, and the official reasoning behind that is that otherwise cable systems would drive broadcast television into bankruptcy and the government is preserving a vibrant market in broadcast television through the must-carry laws.

He stated flatly that the problem with digital works is that they can be copied. He argued that the DMCA is actually pro-First Amendment, as a means to promote the market for digital works. So in the calculus of the government attorney, increasing the speech of a dozen movie studios at the cost of decreasing the speech of 260 million citizens is a win for the First Amendment.

The judge asked about the Audio Home Recording Act and serial copying -- why wouldn't the "no serial copies" approach taken to DAT recordings with SCMS under that law represent a less restrictive means for the government to promote copyright in the digital age? The attorney argued, of course, that the DAT law was inapplicable since it predated the massive growth of the Internet -- and this is where he pulled a fast one on the court. Alter stated that, due to the Internet, one only needs a single copy for "catastrophic" infringement, so even that one copy permitted by the Digital Audio Tape serial copy scheme would be too much. One copy, the judge asked? Yes, he said, just one copy and put it on the Internet and ...disaster. Apparently, in the attorney's world, once that lone copy is made, it pretty much automatically puts itself on the Internet with no further acts by any individual. The point Alter narrowly evaded evaded it is that the act of publishing a copyrighted work to the world is a copyright violation in the traditional sense, and is punishable under traditional laws.

So, the judge said, Congress needs a more restrictive technique to prevent copyright infringement because the Internet is now a factor? The DA claimed that it does.

The judge next moved to one of the most interesting questions of the day -- does fair use require access to a work in its original form? That is, one cannot excerpt a digital clip of a CSS-encrypted DVD, but one could point a video camera at the screen and create a clip, albeit of poor quality. Is that sufficient for fair use? This question has disturbing ramifications, depending on who is asking it and how it is answered. It seems odd, at first glance, to insist that one must be able to make fair use of a work in its full, unfettered, most-advanced, highest-quality form. But after thinking about it for a bit, I realized that anything else utterly destroys fair use. What if I could make clips of 256 kilobits/second mp3s, but the clips were at 16 kilobits/second? Would that be sufficient? Is a 16 kilobit/second mp3 even recognizable as music? What if book publishers could designate the Swahili version of a book as the "fair use" version, and completely shut down any quoting from the English version -- ("After all, you can still quote freely from the Swahili version; it may have a few words missing, and it's in Swahili of course, but you can still quote from it.") The judges seemed to be actually considering that filming a DVD movie from the television set or getting some macrovision-corrupted analog output might be sufficient for fair use purposes, and I hope they think it through and reject that idea entirely.

The attorney moved on to linking. He argued that 2600's actions ought to be examined in their entirety; that 2600 was effectively "shuttling" people over to commit a crime by linking to the DeCSS code. According to him, the entire conduct of the defendants should be considered to divine the purpose behind linking to the DeCSS code. If it were for some legitimate purpose, a link would be okay. But if the purpose were to "shuttle" people to commit a crime, that wouldn't be. The number of links would be important, the context would be important, and the intent of the writer would be important to this analysis. Search engines, according to the attorney, would be okay they are just providing lots of links without the harmful intent that the attorney felt was necessary. So apparently something like this:

"This is a scholarly discussion of DeCSS. We are a major media outlet, and would never encourage lawlessness, so this link to DeCSS is okay."

... is fine, while this:

"Hey all you l337 h4x0rz, come get DeCSS and use it to copy movies and watch them automatically distribute themselves via the Internet!"

... is not. How context works, I'm not sure. Certainly the vast majority of 2600's links that it has ever published are not "shuttling" people to copyright infringement -- the vast majority are for the standard journalistic purposes of disseminating information. But somehow under Alter's analysis, 2600 came up lacking while the NYT did not.

The judge cut deep with a hard question: "Can you prosecute a newspaper who publishes a list of stores where obscenity can be purchased?" The parallels to this case should be obvious. The attorney dodged the question with an outstanding answer: "Yes and no." He tried to go back to his theory of looking at the overall conduct of the newspaper, but it was clear that he didn't want to say "Yes, we can prosecute the newspaper for publishing the list of stores" but did want 2600's actions to be covered, and wasn't sure how to reconcile those two desires ... and neither were the judges. I'm not sure they bought his argument.

Finally, Charles Sims, the lawyer for the MPAA.

He had had time to pay attention to the previous efforts and tailor his argument somewhat. He tried to cover weak areas -- insisting, for instance, that no record of harm is required for Congress to regulate pure speech. He brought up the Congressional record (hearings, testimony, etc.) that pre-dated the DMCA, and said it showed "actual harm" to the movie industry.

Actual harm, the judge asked? "Yes. Actual harm," he replied. "Well, actual threat of harm." That got a laugh from the audience, and scored him no points with the judges. He didn't use the "digital crowbar" metaphor, but insisted that publishing DeCSS was like publishing the combination to a bank vault in a newspaper -- something which is not, as far as I know, a violation of any law, though it might well inconvenience the bank.

The judge asked this lawyer too the hard question about less restrictive means to accomplish the same goal and serial copy management. The MPAA's tactic was similar but slightly different than the U.S. Attorney's; the AHRA is inapplicable, he said, because Congress didn't take the Internet into consideration when drafting it. He also argued something that will make him no friends with the RIAA -- that motion pictures deserved more and better protection than music (so the AHRA serial copying wasn't appropriate for movies). After all, he said, motion pictures have never been subject to the sort of fair uses that music has, the copying and so forth. I suppose he doesn't own a VCR. This argument about motion pictures being more deserving than music seemed strangely surreal -- for the first several decades of motion pictures, they had much, much weaker First Amendment protection than other forms of speech because the courts considered them to be solely entertainment, and only an assortment of free-speech challenges to laws restricting them earned them the privilege to stand on a par with other forms of speech in the protection of the First Amendment. Now, the motion picture people are not only arguing that their form of speech is more privileged than others, but they're arguing that still another form of speech, computer programs, ought to be considered in that inferior, functional category that motion pictures worked so hard to escape from. It's a strange world we live in.

The judge asked whether the DMCA created a "permanent" copyright, or an effective extension of copyright. The lawyer smoothly dodged the questions by saying that movie studios could (not "would," but "could") publish works in unencrypted form when (if) their copyright on the work ever expires, or perhaps someone could use a decryption device then, since it would no longer be illegal under the DMCA to do so. The judge asked where those encryption devices would be, after all, they've been banned by the DMCA. The lawyer had faith that they would appear. So apparently: the fact that the studios haven't gotten encrypted content working in an impenetrable fashion yet means that they aren't screwing you out of your access to works when copyright expires.

In closing, the MPAA lawyer compared CSS to one putting a painting in one's living room or charging admission to a movie theater to see a movie. But the right to exclude people from your living room or a movie isn't created by copyright law, it's created by property law -- your home is your home, and you can exclude people from it to your heart's content. The MPAA's conception of property law was that the movies they release are essentially their home, and they have an absolute right to do anything they want with this property until copyright expires. It is a nice sleight of hand to conflate one's right to one's home, perhaps one of the most powerful rights a citizen has, with one's right to control how a movie is viewed is someone else's home. He seemed to be hoping that the one would rub off on the other.

In closing, Sullivan had a brief rebuttal period. Not worth going into; she tried to call the other two lawyers where she thought they went too far astray and she could zap them.

The judges took the case. They also requested one last brief from both sides, due by May 10th, to cover anything that came up at the hearing and the parties think needs to be explained further. I would suggest that it's likely that the people who draft the brief will read this article; and that insightful comments could be of assistance. I think there are a couple of key areas which people may be able to answer:

1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?

2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.


Reader Trinition also points to this brief a ZDNews article on the hearing; the case was well-attended by the press and by people like the members of LXNY, New York's Free-software organization, so there are quite a few personal and press accounts around the Net.

This discussion has been archived. No new comments can be posted.

Arguments Begin In 2600 Appeals Case

Comments Filter:
  • I'll buy this, but I don't see how it is applicable to this case. Bridge building isn't considered a form of speech. When's the last time someone built an unauthorized bridge and called on the First Amendment to defend it?
  • by Gleef ( 86 ) on Wednesday May 02, 2001 @08:22AM (#251270) Homepage
    Here's my problem, if Expressive Speech is more protected than Functional Speech, what exactly is the difference? I've tried looking at it philosophically, and I get "All speech has both Expressive and Functional aspects to it, there is no pure speech". If there is a legal distiction, can someone (preferably a Lawyer, but not necessarily) please elaborate what it is?

    Barring that, there are some programs that, in my opinion, just plain qualify as art. For example, in the 15th International Obfuscated C Code Contest [ioccc.org], I'd put the programs Glicbawls (bmeyer.c) [ioccc.org] and TomX [ioccc.org].

    Glicbawls goes beyond compressing an image, it talks about ongoing research in the field, demonstrating a routine at the heart of the author's research. It has a clean interface which will do the right thing when confronted with a compressed or uncompressed file. It has a visual representation that is small and artistic. It is programming poetry, a statement about beauty.

    Tomx is poetry as well, but poetry of a different kind. Rather than showing beauty, it talks of communication; "All language is fundamentally one". This is a truth we learn when learning to program, but we often forget it as we move into the real world from the abstract. TomX brings this truth into the real world for us to hold, touch, play with. It's even maintainable code (unlike most of the IOCCC entries), so it can grow.

    Another example of the expressiveness of a program is in the metaphor it uses to interface with the user. Robert J. Sawyer (Author of Calculating God and Flash Fowrward) wrote an excellent article [sfwriter.com] on the design of Wordstar, and how much more joyful it is for him to use, because of the design metaphor, than other designs that perform the same function.

    The Museum of Modern Art has an entire department of Architecture and Design [moma.org] devoted to the art of things that many people think of as purely functional. While they do not yet include software, there is no denying that the software process has much in common with Architecture, Engineering and Design, and the same aesthetic and artistic choices get made during the process.

    These are just some examples off the top of my head. I'd really like an answer to my first question tho.

    ----
  • A year ago I wrote a term paper [everything2.com] for an art class where I anylized the artistic elements used in 2001: A Space Odyssey. Included in the paper, were a Bunch of images from the film [geocities.com] which I had acquired by taking frames from a DVD of 2001 which I had bought in a store. I would argue, that for the purposes of my paper, or any other artistic discussion of a film, using pictures taken by pointing a camera at a television would not have been good enough to help the reader see what I was discussing.

    For example: Some of the things I discussed involved the use of color and texture, which would probably have been degraded beyond recognition if I were forced to use pictures taken by pointing a camera at my TV.

    If I can use parts of a copyrighted work in my own scholarly works, I must be able to use it at full quality. Anything less would not be adequate.
    --

  • by smartin ( 942 ) on Wednesday May 02, 2001 @05:29AM (#251272)
    In that report I saw no mention of using DeCSS to simply view the movies under Linux where no legal or authorized DVD player existed. The arguments seemed to revolve around copying and distributing content an assumed but not necessarily proven allegation. Using DeCSS to access the media in it's inteneded use, ie. watching the bloody movie, never seems to be mentioned.
  • Books about making bombs are illegal? Really? When did that happen?

    It's been a while, but a couple decades ago the Progressive magazine printed instructions on how to make a nuclear bomb. I don't believe it was found to be at all illegal (there's some reference to the article here [fas.org]).

    The Anarchist Cookbook [amazon.com] still seems to be easily available -- though maybe that's just because it's a right-wing conspiracy to get dumb anarchists to blow themselves up :)

    And, several years ago when I knew someone who was into that sort of thing, books on converting weapons seemed easily available.

    To me it seems like DeCSS (and the DMCA) is a radical departure from normal law. (Though I wonder if similar censorship has occurred for manufacturing LSD, etc.?)

  • Publish it minus the soundtrack perhaps. IIRC, the music in the movie is still copyrighted and therefore you can't distribute the movie with the soundtrack intact. Someone correct me if I'm confused on this.

  • Publish it minus the soundtrack perhaps. IIRC, the music in the movie is still copyrighted and therefore you can't distribute the movie with the soundtrack intact. Someone correct me if I'm confused on this.

  • What ripping and recompressing to DivX achieve is to get the file size down to 1 or 2 CD's where you can burn it on a CD (and more easily download it), which is widespread technology, unlike DVD copiers.

    I find it hard to believe that this is any sort of real threat to the MPAA. How many people are going to be willing to tie up their broadband connection for a whole day just to download a movie to watch on their PC when they can usually go rent the movie for 4 bucks or less whenever they want? I just don't see it causing any real harm, certainly not enough harm to justify the kinds of restrictions the MPAA wants.

  • Of course no-one has to download in order to copy - you could just rent a DVD from Blockbuster or NetFlix and rip yourself a copy... Hell, you don't even have to burn it to CD - I see Seagate is now selling 180G drives - enough for a pretty impressive collection of movies (around 200 or so)!

    And the number of people who do this would probably be comparable to the number of people who do it with VCRs today. Which is to say a pretty insignificant number, and not one that will harm the MPAA enough to warrant the kind of restrictions they want.

    I personally think they've brought any such disregard for copyright laws by the masses on themselves. People only tolerate corruption for so long before they decide to purge it.

  • by bhurt ( 1081 ) on Wednesday May 02, 2001 @10:03AM (#251281) Homepage
    Can I draw you attention to Donald Knuth's "Art of Computer Programming"- the definitive work on computer algorithms, which was named by Scientific American as one of the seminal works of the 20th Century (see Knuth's Home Page [stanford.edu]) putting him in the company of Albert Einstein, Russell and Whitehead, von Neumann, and Dirac.

    In it he passionate argues that not only do you need source code to intelligably discuss algorithms, but you need *assembly code* (one short step shy of object code). And all of the algorithms are presented in assembly language.
  • Your slander against 2600 magazine is quite immaterial.

    It is not legal to supress the publication of manuals that teach you how to do illegal things.

    If it weren't specifically for the DMCA, and the fact that it is the movie industry that is the plaintiff, this case never would have gotten past demure.
  • by jamus ( 1439 ) on Wednesday May 02, 2001 @05:45AM (#251286) Journal

    If computer programs aren't expressive speach, then according to the Copyright office's website, it won't be covered under copyright law. See [loc.gov]
    Circular 1, which lists Copyrightable works. They don't have a category for compute programs, but make this recommendation:

    For example, computer programs and most "compilations" may be registered as "literary works"

    It goes further by saying that "works that have not been fixed in a tangible form of expression" "are generally not eligible for federal copyright protection".

    So, if programs aren't expressive speach, then where does that leave the copyright status of the million of computer programs out there? Is that a Pandora's box that the court wants to open?

    Now, I'm not a copyright lawyer, so I'm not sure where or if this is in actual law. If anybody else knows, I'll be interested in hearing.

  • This depends on whether you consider nature to be an art form.

    IMHO, computer code is demonstrably nothing more than a number. (See the various work by Alan Turing. But also think of your computer's memory as a linear stream of bits. That bit pattern can be viewed as one huge integer number.)

    Obviously, not all numbers are equal. Most (99.9%) represent nothing of any use. The remainder represent algorithms that are of value.

    I don't see the difference between this, and any natural structure. There are many, many more "mathematically-valid" possibilities than there are real ones. An upside-down tree is a valid construct, but it isn't going to happen. At least, not without a lot of assistance.

    My argument is that the sculpting of code is much like the sculpting of the landscape, through natural forces. Some sections are eroded, others are extended. Sometimes, "trivial" changes have massive long-term consequences. (Frost-cracking, in nature, can be as devastating as a subtle low-level struct change.)

    If you want a more "technical" proof, look no further than Benoit Mandelbrot's "Fractal Geometry of Nature", in which he demonstrates the recursive, self-similar, and non-Euclidian properties of the natural world. Then look at a Jackson Structure Diagram, or an EBNF grammar. You'll quickly spot that the very fact that you CAN draw such diagrams shows that the same recursive, self-similar properties are inherent in code.

    The non-Euclidian nature is slightly harder, but can still be demonstrated. Euclidian shapes have N+ dimensions, where N+ is some integer number equal to or greater than zero. Euclidian shapes are also "simply connected". Because code is self-similar, it -cannot- exist in an integer space, because that space would need to be infinitely larger than the space it is enclosed by.

    It follows that code has a fractal dimension, except in "trivial" cases. Now, let's throw in the ability to connect any two points, at random. This is most definitely not a "simply connected" space. There's nothing simple about it. A multi-dimensional map of any non-trivial code will show a horribly complex network of one-way paths, remote connections, circular references, etc.

    The only logical conclusion is that non-trivial code is fractal and exists in a fractaline space, rather than being an artifact in a simple space.

    But does that make it art? ONLY if nature is. If nature is not art, then code cannot be, either. Code and nature are, fundamentally, much more related than code and a bridge. (You don't get to build a Bridge 0.0.1 - patchlevel 101. Bridges are constructs. Get them wrong, the first time, and there won't be a second. You start from scratch, each time, or you don't start at all.)

    This is one of the reasons "Software Engineering" has never been successful. Trying to treat a natural entity as if it were an artificial construct is doomed to fail, or at least prove horribly difficult. (Artificial hills exist the world over, though they're usually small and very simple. Ever seen an artificial mountain range?)

  • What this system allows is media-shifting (applicable under the AHRA and the Betamax scenarios) for personal use. Under the AHRA, you can still make custom compilations on digital media to give to your friends.

    Indeed. Even now, there are people trying to take analog video recordings that they have acquired and move them to a digital format for preservation. Plus, the (physical) space requirements of a CD/DVD are much less than a VHS tape. In addition, space-shifting MPEG-2 video to MPEG-4 so that you can carry several movies on a single DVD-ROM with you on your extended vacation (which currently would require you to fire up the old video encoding farm, but that's beside the point :) is prevented by the DMCA, but similar actions are allowed by the AHRA. And the MPAA's argument is that new technology development changes the game. Wasn't the same (or a very similar) argument made in the Betamax case?
    --
  • Code has free speech qualities in that it expressed an individual's creative approach to solving a problem. When I see someone's more efficient approach to an algorithm in, say, Perl, I appreciate it for being "another way to do it". (Apologies to the original saying from Mr. Wall.) I LEARN from it - I broaden my horizons in ways to express creativity.
    Similarly, when reading someone else's poetry or a novel, I appreciate and learn new ways to express things in the English language. (Sorry, I'm not very bilingual...) I see someone else's approach to describing a color or feeling or item, etc. As social creatures ('cept when on 24-hour coding binges!), this behavior is inherent to our being.

    Another reason to use a full-quality fair-use clip is to accurately discriminate between two different pieces of media. If you could only use a black-and-white copy of a movie for fair-use instances, how could we fairly compare the quality (technical comparison, not content) of "Miracle on 34th Street" and "The Matrix"?
    For that matter, if the movie companies go to such great lengths to provide a medium of superior quality, why would they relegate others to show a watered-down version of the product and not be able to "sing the praises" of new technology?

    Not sure if this makes any sense, but that's just my thoughts off the top of my head.

  • I think that there is one unfair point in the government's argumentation: the comparison with the "program that shuts off smoke detectors in public buildings".
    It seems like they fail to make the difference between source code and a binary executable program. And then they cannot make any difference between a plan for a bomb and the bomb itself (correct me if I am wrong, I am not a US citizen, but AFAIK posting a plan for a weapon is protected as free speech in the US?). Like the compiler that is between the source and the binary representation there are only some employees and a few salaries between the plan for a bomb and the bomb itself. And in the future, when someone invented a device that reads the plan and builds the bomb automatically, not even that.

    In other words, they can either make only the binary illegal and keep the source legal. Or alternatively they must forbid any form of speech that allows the creation of an "illegal device".
  • I would have insisted much more on the fact that DeCSS can -not- be used for mass duplication

    But you would be wrong. Rent DVD, rip DVD, encode to DivX, rename, put "Movie-divx.avi.mp3" on napster. In the worst case, if you have a cable modem, (say, a 320 kb/sec upload speed), and if everyone who downloads from you shares the movie over their cable modem, then after a day ~8 copies of the movie exist, after two days ~64 copies exist...

    I think it would have been very good to point out that the encription does not, in any way, prevent pirates from copying software, neither does DeCSS make it any easier.

    This is better. Don't point out that DeCSS lets you get a perfect rip a DVD movie... point out that there has been software to perfectly rip DVDs (via automated screen capture type means) for something like a year before DeCSS came out. Point out that the hardcore pirates aren't going to bother decoding the movie at all, but will just make bit-for-bit copies to sell at $5 a pop.

    Point out that even if DeCSS is a "digital crowbar" (digital screwdriver might be more accurate), crowbars are not illegal.
  • Ok. Let's assume for a minute that the programs are not expressive and therefore A) not protected by the 1st amendment, and 2) not able to be copyrighted.

    What effect would this have on the programs that are used by the industry to encrypt and decrypt the movies? Suddenly the programs are no longer under the protection of the DMCA, which means that it's perfectly legal to do things like reverse engineer them! Hey. . .neat. . .

    ** Martin
  • The judge handed us the unconstitutional arguement we neeed! Look - DMCA DOES effectively extend copyright on movies to a perpetual status. That is blatantly unconstitutional. The constitution specifically allows copyright for a limited time. Wallah! By other court actions, congress can keep on extending copyright as long as it isn't permanent. This one is pemanent as written!
  • This is why I believe DeCSS should ultimately win out. There is a valid reason why it should be allowed (to whit, allowing users to view DVD's in open source OS's).

    However, I don't believe that copying DVD's for piracy should be allowed, which is what I think the MPAA et al are worried about. The trouble is, as it says in the article, the pirates just do a bit-to-bit copy and DeCSS doesn't come into it. Where the internet comes in is that an unencoded DVD is simple an mpeg file which could be transferred across the internet. While current network bandwidth's aren't large enough to cope, it wasn't that long ago that trading music on the 'net wasn't a viable option but Napster has proven that it can work now. Give it a few years, and unencrypted DVD on the net will become comparitively commonplace.

    However, even if they manage to band DeCSS, there will still be ways to grab the film and encode as an mpeg; all you need to do is put a filter between the app and the screen to capture the output. You'll miss out on the extras (subtitles etc), but you'd miss that with a decrypted mpeg anyway. The alternative is, of course, DVD images (similar to .iso images) which, again, don't use DeCSS.

    With some luck, the judges will realise that piracy of DVD's will happen with or without DeCSS and they'll throw it out.
    --

  • Computer programming languages are designed for the rigorous expression of solutions to problems. The nature of the problems so discussed and solved are practically unconstrained. In essence, any domain of human endeavor or interest that is sufficiently well understood (even if only approximately) to be described with the necessary detail may be addressed by a computer program.


  • Ok, well lets look at this from another perspective. Why does a movie have to be art? What about the garbage that floods my tv all the time that I don't watch because it is pointless, bad attempts at humor that lacks in any real form of imagination? I could see some movies as art, but for every good movie there are 50 crappy ones. I think for programming this is about the same. For every good program there are allot of bad ones. To me my work is just as important as thiers. And if you ask M$ about it they would agree that software (at least thiers) is more valuable than the movies.

    What if we took all these major legal battles and threw them together and see what came up. I'm sure that M$ could put up just as many arguments as the movie industry that their software deserves more protection than their movies. Since their movies start in a theater that you cannot get a digital copy from. While thier software is reproducable from day one. Not to mention smaller and easier to transport across the internet.

    "Beauty is in the eye of the Beholder" What is art to me might not be art for you. And the reverse is the same. Is my programming art? I think so, but others might not. Does it really matter?
  • Suppose I'm a video artist and I want to rip sections of my DVD to study animation and video techniques. I want to take advantage of the quality and fine control I can get over the frames to study and modify portions of the film as a learning exercise. Perhaps I would like to practice digital editing and post-production techniques?
  • I forget who did it (there was an article in SciAm a few months ago about it), but the artcile was talking about how elegant (scientifically) a solution was to decreasing the amount of material required to build a bridge structurally, and at the same time making it aesthetically pleasing. In fact, the reduction of materials in this case actually made the bridge stronger. Someone seeing old bridge designs, and then new bridge designs might think "Wow, what a beautiful solution to the problem, and it works too!"

    I would liken this to some of the evolutionary development that takes place while coding. How many times have you written something that is ugly and gets the job done, but is really inneficient, then later come across another piece of code, or someones reworking of your own code, and thought in awe "I can't believe how much better that is, look at how it steamlines all the processing, etc.". At the same time as the code is being functional (and doing the same thing that yours did) it is expressive in showing an alternative way of doing it that is a more beautful solution (at least to another programmer).

    Also, there is definitely something expressive and instructional about having more than one implementation. For example, by comparing the different bridge designs, and analyzing them, someone else might be able to come up with a better design for bridges, or for that matter, for anything structural. (Think of how many developments from NASA have made it into everyday life.)
  • by Yohahn ( 8680 ) on Wednesday May 02, 2001 @05:53AM (#251320)
    Has anybody considered contacting Noam Chomski?
    As a linguist is he quite distinguished. I imagine he could give quite some explanation as to how much computer languages are speech.
  • by FreeUser ( 11483 ) on Wednesday May 02, 2001 @07:04AM (#251336)
    The biggest thing to hit in the follow-up brief would be to point out the logical inconsistencies in the DA/MPAA's arguments which Michael so clearly pointed out. The argument about how a DVD that eventually falls into the public domain will be accessed struck me as a particularly powerful one.

    Indeed. There was an article some time ago linked to by slashdot, which described ongoing difficulties with preserving existing data and knowledge as storage media changes. It is a problem libraries, data wharehouses, companies, and even individuals have (how do you play those old 12" records when no more turntables are manufactured, or they have become so specialized and expensive as to be unobtainable by all but the most wealthy?). These problems have arisen without encryption, without any malicious efforts to make the data inaccessible. Quite the contrary, information is being lost over time already. How much worse will this become with the added barriars of encryption, against which even research is being suppressed, quite probably until it is too late.

    Another issue touched upon in the article is the dubious notion that studios will make content available in an "unencrypted" form once their copyrights expire. Two facts point out the absurdity of this notion: (1) The movie studios have been aggressively extending copyrights in order to keep copyrighted material (including such icons of western culture as "Mickey Mouse") out of the public domain (cf. Sonny Bono Copyright Act) and (2) The studios have a history of destroying films once their copyrights have expired, rather than release the material into the public domain as their social contract, per the constitution, requires. Taken together these two facts, along with the DMCA, clearly shows the ugly situation we have gotten ourselves into, where historians, librarians, and other preservers of information are legally banned from doing their work until the material they wish to preserve has become inaccessible due to encryption which cannot legally be circumvented, and for which research is actively suppressed through legal thuggary, or has been destroyed altogether. The result? It is very likely that almost no cultural heritage from our time will be handed down to our grandchildren, except perhaps as a proprietary, commercial work for which the copyright has been extended to an even more outrageous duration ... again.
  • by Wreck ( 12457 ) on Wednesday May 02, 2001 @07:14AM (#251342) Homepage
    For many things, the MPAA is right: you don't need all the bits to get fair use. If you just want to make reference to the overall image in some way, for instance, you could just make a cheap VCR recording.

    But some uses do need all the bits.

    Someone already mentioned creating histograms as one way of analyzing what is going on, onscreen. My thesis might be that in "Bladerunner", the average number of black pixels is higher than any other the other 5 most popular films that year.

    Another case you would need the bits for, is steganography. What if I assert that the front page picture in the NYT is actually being used as a secret method to contact agents in another country, or even aliens? You certainly cannot prove anything about that picture one way or another without the exact bits.

    Another possible example would be to analyze media for subliminal content. I claim that there are secret pro-smoking images in "Traffic", perhaps flashed up for only one frame. They might not be caught if I digitized from a TV screen.

    And who knows what uses might be thought of in the future? For instance, with computer analysis you might be able to tell which scenes of "Titanic" were filmed in what order, by analyzing the amount of weathering on the sets. If this is possible at all, it is clear that you need as much information as possible.

    Incidentally (or perhaps not), the issue of "all the bits" relates to code expressiveness. It is true that for the great majority of uses, all you need is the compiled version of code -- the "boiled down bits". But code is not just about running machines; it is about communicating stuff -- primarily algorithms -- to other humans. For that, you need all the bits.

    The issue of fair use is not about the most common or expected use of an item. It is about all the other uses: the improbable, unexpected, low incidence ones. The ones that might not even be possible or thought of now, but which might happen in the future.
  • by MO! ( 13886 ) on Wednesday May 02, 2001 @08:09AM (#251346) Homepage
    The biggest problem I have with the MPAA/RIAA/etc view on Fair Use of Digital Works, and it was supported by Judge Kaplan, is this:

    To make a Fair Use copy of a DVD film, I am told I can easily buy/rent a VHS version of the film and exercise my rights without problem.

    There are a few fundamental flaws to this proposition:

    1) The content I want to use must be available on VHS format. This is not always possible since many DVD's contain extra scenes/footage not included elsewhere.

    2) I must buy/rent the necessary player for the VHS version, if it does exist.

    3) I must buy/rent the necessary conversion device(s) to get the VHS content onto my PC - assuming my presentation is being conducted from my notebook computer (which would be true for me).

    4) I must buy/rent the VHS formatted version, if it exists.

    These four points create an excessive burden and cost to me. The Fair Use provisions of Copyright law allow me to use the item I purchase - a DVD in a permissible manner. It does NOT require me to purchase or rent additional items in order to exercise my rights with a lower quality version of my original purchase.

    To rule otherwise is a gross perversion of both the intent and letter of the Fair Use provision.

  • by ethereal ( 13958 ) on Wednesday May 02, 2001 @05:17AM (#251350) Journal

    I thought this was interesting:

    The Appeals judge made the point that the injunction could not be considered to apply to anyone except the specific defendants -- that is, just because 2600 was enjoined from posting or linking to DeCSS, doesn't mean that anyone else necessarily would. On the other hand, the reasoning applied in the opinion could be assumed to apply to other U.S. citizens wanting to post DeCSS. The gist was that Sullivan couldn't argue her case as if anyone would be enjoined from linking to DeCSS, but only regarding the specific defendants that were.

    I don't understand how this squares with other court cases which have argued that this is a prior restraint on free speech. After the DeCSS case, anyone interested in publishing cryptographic research about a particular protection scheme (like Prof. Felten, for example) will be thinking twice about that publication. This doesn't seem right to me, I hope Ms. Sullivan hit that point hard.

    The biggest thing to hit in the follow-up brief would be to point out the logical inconsistencies in the DA/MPAA's arguments which Michael so clearly pointed out. The argument about how a DVD that eventually falls into the public domain will be accessed struck me as a particularly powerful one.

    Caution: contents may be quarrelsome and meticulous!

  • by Bartleby ( 14582 ) on Wednesday May 02, 2001 @10:42AM (#251353)
    I'm not sure where the idea came from that aesthetic quality is the measure of constitutionally protected speech. Whether or not code is or can be beautiful is not at issue. All that matters is that, in addition to providing instructions for a machine, it can (and does) function as a means of communication . If source code were not intended to communicate it would not contain comments or use actual words (e.g., if, until, include, etc.).

    I would think those who claim source code does not constitute protected speech have the difficult case to make. Unfortunately, most people (including judges) don't understand the difference between code and software. In essence, they argue that software doesn't constitute speech (and I don't really have an opinion on that one way or another) without really knowing what source code is.

    Would people argue that sheet music is not speech? After all, it's just a set of instructions most people don't understand.
  • by Sloppy ( 14984 ) on Wednesday May 02, 2001 @08:33AM (#251359) Homepage Journal

    I don't think this would be a good specific example to bring before judges, but hopefully it will trigger someone else's memory of something like it that they have done, which would more .. uh .. presentable.

    Basically, the specifics were very childish. I'm almost too embarrassed to mention it, but I guess freedom's at stake, so...

    In an accounting program that I've been working with since the 80s, there's the concept of "joint checks". The word "joint" in the English language happens to be overloaded and means something else that is completely unrelated to the concept of joint checking accounts. Because of this, in a little section of code, I^H a certain bored programmer chose to use variable names that referenced pot smokers, and one variable name that is a reference to .. um .. a public figure. The code, in addition to performing a purely functional action, contains double-entedres that expresses an opinion of that public figure's mental capacity. That's expression. (It's also probably slander, so I won't go into the details.)

    But the basic principle is this: source code can "say" something that is orthogonal to the actual function of the code. For example, you could take the DeCSS code, and change the variable names so that, for example, you have an assignment statement that says this:

    mpaa = evil;
    or
    gwb = coke_head;
    And I don't see how anyone could argue that the code is merely functional and not expression as well.
    ---
  • by Sloppy ( 14984 ) on Wednesday May 02, 2001 @07:32AM (#251360) Homepage Journal

    For some horrible/great examples of expressive code, check out the entries in any obfuscated C contest. What does it express? It expresses how damned perverted a human mind can be!

    (I'll try to think of some others over the course of the day.)

    A fair use example that requires exact duplicate? Very easy: discussions of compression technology. "Look at the (lack of) visible compression artifacts in this MPEG2-encoded high-motion scene in Robocop, and compare it to how horrible the same scene encoded with MPEG4 looks." You can't do such a comparison without the MPEG2 data.


    ---
  • by Royster ( 16042 ) on Wednesday May 02, 2001 @05:53AM (#251366) Homepage
    The first stage was the trial court with Judge Kaplan where questions of fact and the trial court's interpretation of the law were set down in the first ruling.

    This was the first appeal from that trial court. The Court of Appeals reconsiders the legal arguments while using the factual record established in the trial court. Thus you see references to the MPAA not being able to demonstrate a single instance of copyright violation due to DeCSS -- a stipulation that the MPAA made during the trial.

    From here there are several different paths. If the Court of Appeals upholds Kaplan's runling, there's no where else to go but up. An "en banc" hearing before the full Court of Appeals could be requested. (This hearing was in front of only three of the 10 or so Court of Appeals justices in the 2nd District.) This is more likely if the ruling is a split decision 2 to 1 with a stron dissent. The only other place to appeal to is the Unites States Supreme Court which could decide to hear or not to hear the case. We're probably not going to see a SC hearing before late 2002.

    This court could rule and issue an opinion remanding the case to the trial court to consider some question that wasn't addressed or for the trial court to consider the law in a different way. So it's possible for the case to bounce around the different layers of the court system a few times. Eventually, it will bubble up a last time to the Court of Appeals and become a candidate for the Supreme Court.

    It looks like this case is destined for the SC because of the deep constitutional issues involved. Copyright, first amendment, a first impression DCMA case, there's lots of reasons why the SC would be interested.
  • by SuperKendall ( 25149 ) on Wednesday May 02, 2001 @08:47AM (#251389)
    A player that saves clips of some movies for use in "bookmarking" scenes - you can go through a list of booksmarks in a jukebox DVD player, view a page of clips, and select what you want to watch.

    Being able to digitally transmit a DVD from a player in your living room to a monitor in your bedroom.

    Writing out some scenes from movies to a mini DVD format (or even perhaps some sort of digital tape) to keep kids occupied in the back of your car.

    Being able to watch all of the special features passivley in a single viewing session instead of going through the menu structure to see each piece.
  • by SEWilco ( 27983 ) on Wednesday May 02, 2001 @10:47AM (#251394) Journal
    1. Why and how is a computer program expressive speech?

    How about the "Obfuscated C Contest" entries? Some are expressive in creative ways. Some are expressive in the representation of their code, some are more expressive in their results, some in both.

    2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form?

    I'd like to be able to copy my DVD collection to the next generation of media. Any DVDs which I own I should be able to view even if DVD players no longer exist. Ten or twenty years from now all my DVD players will be broken and I won't be able to buy a replacement because everyone will be using different technology.

  • by FonkiE ( 28352 ) on Wednesday May 02, 2001 @07:34AM (#251396)
    > 2. What examples of fair uses absolutely require > access to the work in its most modern, digital, > uncorrupted,
    > un-macrovisioned form? The only one
    > that jumped out at me is making a backup copy in
    > case the original is
    > destroyed. But perhaps there are others

    video beamers don't work with macrovision enabled.
  • by MarcoAtWork ( 28889 ) on Wednesday May 02, 2001 @06:03AM (#251399)
    Example first, rambling later:

    Mathematics: Can you imagine what would have happened to mathematics if all these laws were applied to theorems? I mean, a theorem is a honest-to-God work of art, it took a long time for the scientist to figure it out, it can be copied digitally (i.e. you can make a copy indistinguishable from the original) and because others can make derivative works from it and access it in the original form, new theorems are created, and humanity's knowledge advances. What if you couldn't access a theorem or its proof in its original form, but just to take a picture of it from a grainy TV screen or something? What if that 2.1234 becomes 2.1235? Some could argue that if you alter a movie a little bit by taping it, people would still get the idea, well, you would still get the idea from the photographed theorem, but you wouldn't be able to appreciate it as much, since you wouldn't be able to follow the proof, or maybe even read what the heck the theorem is all about

    Well this is hard, one could try to say that if you are studying something, you need the whole thing, whether it's a musical score (you need all the notes) a painting (that's why scholars travel to museums, pictures are not enough) etc.

    In general, to seriously criticize or analyze a work, you need to see/hear the work as the artist intended you to and any reproduction of this work is an approximation that prevents you from actually studying the work.

    Now, the problem is that in the old days art objects were unique, there was no way that you could copy an autograph score, a picture, a statue and create an indistinguishable one.

    Nowadays, instead, you can create as many copies of a digital work as you want: in a way this is bad, since copying is possible, but in another way this is good, since the number of people that can have access to the original, unadulterated work of art, is practically unlimited.

    Imagine if you could do a 1:1 copy of the 'Mona Lisa', nobody would have to travel all the way to the Louvre to study it, you would just buy one of these master copies stick it in your living room and enjoy it to your heart's content. If you wanted to quote it in a study of yours, you could quote part of the original.

    Fast forward to now, imagine that an artist comes up with a digital piece of art (this is not that far fetched, even a movie is art) if you have access to the original digital material, you can do all sorts of things that you can't do with an analog copy.

    If I am studying a movie and I have the digital signal, I can run it through some programs to figure out, say, the histograms of the light distribution in a particular scene, I can calculate the color bias of a frame as a whole, all things I couldn't do if I taped it from a TV.

    Now, people could argue that the DVD is not the original product of the artist, the movie reel is, but since it comes from the same studio, it is an approved product, and constitutes art in and of itself. In any case, a private citizen wouldn't be able to have access to the movie reel at all.

    You see where I am going, nowadays, with the digital availability of content, we could usher a new era in which access to art in its original form is not anymore a privilege of the few, but something that anybody can enjoy. The DMCA seems to want to limit this newfound freedom by constraining people to use this art only in approved ways.

    Personally I believe that everything is art, anything that is the product of human intelligence and creativity is art, whether it's a movie, a painting, an ad campaign, a piece of code, a house, a three year old's drawing, an interior decorator's colour plan, and I can't see why some people's art must be protected more than others' (besides, of course, to protect some pre-existing acquired interests).

    I am not advocating a free-for-all world, unfortunately many people, if given the choice, will freeload instead of buying things, but there must be a better way to protect the artist's interests while at the same time preserving the art consumer's interests as well.
  • by scruffy ( 29773 ) on Wednesday May 02, 2001 @05:37AM (#251400)
    1. we can read and write programs.

    2. we can say programs aloud.

    3. programs express instructions to perform some task, similar to any how-to book or cookbook.

    4. a community (computer scientists) uses programs to communicate and disseminate ideas.

    I'm glad I was smart enough to think of these reasons :). This should be a no-brainer.

  • by smillie ( 30605 ) on Wednesday May 02, 2001 @06:23AM (#251411) Journal
    The argument about how a DVD that eventually falls into the public domain will be accessed struck me as a particularly powerful one.

    This means that that they have stated in court that there is a legal use for DeCSS - for decripting movies after copyright has expired. Not only is there no known use of DeCSS for pirating but there is real reasonable use for the code.

  • by evilquaker ( 35963 ) on Wednesday May 02, 2001 @06:59AM (#251435)
    Apparently, in the attorney's world, once that lone copy is made, it pretty much automatically puts itself on the Internet with no further acts by any individual

    Which misses the states' point about DeCSS -- it's uniquely dangerous precisely because it *isn't* a copying utility -- it's a decryption utility. Because of that, it makes it possible to "rip" protected content and convert it to all manner of different (more easily traded and recopied) formats.

    Which completely misses michael's point: if you use DeCSS to convert a DVD file to a different format no distribution has taken place, and no copyright has been violated. The copyright violation occurs when the (converted or unconverted) file is put on the internet. The fact that the converted file is more easily distributed is irrelevant. Or did you want to outlaw all of the things which make distribution of copyrighted files easier?

  • by Chandon Seldon ( 43083 ) on Wednesday May 02, 2001 @07:00AM (#251443) Homepage

    Ahh... you missed it.

    DeCSS is not designed allow copying of DVDs, it is to allow *decryption* of DVDs. This allows for things like viewing the DVD, and taking clips of the DVD for fair use purpoises that are impossible without some sort of decryption device.

    The expected decryption device is a standard DVD player, but DeCSS is an equally valid device, just as it is equally valid to use Adobe Acrobat Reader or xpdf to view a PDF file.

  • by superid ( 46543 ) on Wednesday May 02, 2001 @05:41AM (#251446) Homepage
    Hypothetical, perhaps a bit contrived, but you get the general idea

    I think this is a very good example. I am 99.99% sure that I read that one of the developers of the mp3 codec at the Faurnhofer (sp?) institute tuned his compression coefficients by ear. He listened over and over to a Susan Vega song (Tom's Diner IIRC) trying to identify audible artifacts while monitoring the effective compression. Had the source material been in a different format, he would have certainly achieved different, possibly sub-optimal, results

    SuperID
    Free Database Hosting [freesql.org]

  • by MartinG ( 52587 ) on Wednesday May 02, 2001 @06:25AM (#251452) Homepage Journal
    I got sick of my video collection, which is all VHS because each video is so big. I have started to convert some of them to VCDs. This means I can have the convenience of the smaller size, and I don't have to worry about when my video recorder finally breaks down. (also, who knows how much longer VHS recorders will be available)

    I can only do this because their is no content scrambling system on VHS.

    What happens in 10 years when I have built up a collection of hundreds of DVD movies and I want to copy them to another new format for similar reasons? (eg, my new portable movie player that I can take on planes with me and carries 100+ movies at once)

    I'll tell you what happens. I use DeCSS to remove the stupid scrambling system and I copy it to the other medium in question. If someone would like to explain how thats not fair use, I'm listening.
  • by oddjob ( 58114 ) on Wednesday May 02, 2001 @05:26AM (#251461)
    It is easy to provide examples of code used as expressive speach. Just look at the bookshelf of an computer science professor or student. The most clear cut example is to take any instance where code is used to describe an algorithm -- you have code being used to express a mathmatical idea. In this case, code is not just a language that a machine understands, it is a technical language that a person understands. And in this case, the code explanation is usually more clear and precise for the reader than an english explanation would be.
  • by ReconRich ( 64368 ) on Wednesday May 02, 2001 @05:39AM (#251468) Homepage
    Here's a very small (that's the art part) of code I saw many years ago. I thought it was art then. I still do.

    #define SWAP(a, b) ((a)^=(b)^=(a)^=(b))

    Why is this art you say ? It is very like Haiku, expressing its subject in its most minimal form. While you must understand the symbols of the medium to "get it" this is also true of Noh, opera, and many other art forms. In this instance, the art is in the minimalism ... the tiniest expression of a thought, perhaps, its essence. Code provides a medium for this sort of art that does not exist elsewhere. And it is not just minimalism... Check out Knuth's sources to TeX ... that would have to be the other extreme.

    -- Rich
  • by nostrodecus ( 65186 ) on Wednesday May 02, 2001 @05:59AM (#251470)
    i would play this up.
    coders are, essentially engineeers, and what we work on are essentially engineering problems. our job is to come up with the solution to those problems. as we all know, any given problem (e.g. connect two sides of a river) has numerous possible solutions. (build a suspension bridge, build a tunnel, build two docks and buy a fast ferry). a factor in the solution is how asthetically pleasing the solution is for the inhabiatants of the area (the bridge is really pretty) and how pleasing it is to your engineering peers (o.m.g. you distributed the load to the 2 central columns using a mesh that looks just decorative).

    similarly with solving a problem in code. you can brute force a solution and that will get the job done, but no-one who ever looks at it your code will be impressed. each extra level of ingenuity you work into your code, each clever way of solving a problem, or each really elegent piece of your design speaks to another programmer.
    in the end the programmer cannot describe his work (his art) in english. he cannot say "oh how clever am i, i used design pattern X here and that gives me a 30% performance improvement".

    instead he publishes his code, his peers see it. and they know.
  • by bwt ( 68845 ) on Wednesday May 02, 2001 @09:04AM (#251477) Homepage
    1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?

    A computer program expresses a method. It expresses functional ideas, much as a recipe, scientific experimient instructions, or musical score does. The actual expression depends on the program, so the question is sort of like asking what a musical score expresses - a general answer is very generic, but any specific instance of such communication will be much more rich. Here, DeCSS expresses the functional ideas that demonstrate that CSS is insecure in a specific tangible way. The First Amendment protects such content even against a Congress bent on stiffling that particular idea from dissemination.

    Softwares expression generally is equivalent to standard english sentences with the understood 2nd person subject ("You"), followed by the verb given by the instruction, and a direct object that tells what the operation occurs on. A decryption program, for example, generally expresses a mathematical forumla, and are often an implementation of functional ideas learned from reading mathematical literature. Computer books are filled with programs and form a major sections at most bookstores precisely because they are expressive. Programs are copyrighted because they are expressive. Computer programs are not part of any "conduct" until and unless they are executed. Instead, a program merely communicates functional ideas that might be exectued or might be read by the legions of programmers actually do read and understand programming languages.

    2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.

    The question is misplaced. Fair use admits no bright line rules (See Leibovitz v Paramount [tourolaw.edu], opinion by judge Newman) A rule that said "No fair uses exist for high quality digital works" is therefore impossible to assert. Instead, fair use is an affirmative defense to copying as chosen and performed by the alleged infringeer. If the four factors weigh in favor of fair use, then fair use exists. To abstractly argue this can never be the case for digital movies requires proving a negative, which is impossible and counter to copyright jurisprudence.

    We'll answer the question anyway by providing just one example, that happens to be relevent to DeCSS: "Interoperability" is one class of fair use that clearly has a well-established existance in copyright jurisprudence. Using DeCSS to allow interoperability of DVD's with alternative operating systems and/or MPEG-2 players is done for personal, noncommercial use, and increases rather than decreases the potential market for the copyrighted works in their high-quality digital form. Linux users will now buy DVD's, if allowed.
  • by haggar ( 72771 ) on Wednesday May 02, 2001 @05:28AM (#251487) Homepage Journal
    She also made much of a rather telling fact: there is no piracy attributable to DeCSS whatsoever. Not one traditional copyright infringement has ever been attributed
    to DeCSS, and the movie studios admitted in the case that they could not produce even one example of an infringement due to DeCSS. (Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required, though that wasn't covered
    in the hearing.) But Sullivan jumped on this point for all it was worth and then some -- the judges seemed fairly skeptical about accepting it, trying to insist that widepsread and massive copyright infringement due to DeCSS must be occurring, somehow, somewhere. It just must be.


    I would have insisted much more on the fact that DeCSS can -not- be used for mass duplication, and that, actually, even for creating single copies is not particularly useful. I think it would have been very good to point out that the encription does not, in any way, prevent pirates from copying software, neither does DeCSS make it any easier. And then, of course, I would bring in a testimony (a technical authority) to confirm this.

    I believe that, if we break the scepticism and -ignorance- of the judges, we can have the case largely won.

    Remember, this case is buit upon ignorance!! The way to de-construct it is to decrease the ignorane.. through education. I believe that a lot of (self)education was what happened to judge Jackson.

  • Why should the penalty be stiffer?

    Frankly, I think the "burglary tools" concept is silly at best. Commiting a burglary with tools is no more or less "wrong" than committing it without tools. In essence, its the same crime, it does the same real harm, why should it not be punished the same?

    If anything, the use of such tools shows that a burglar is smarter than the average doorknob.

    Why should there be an extra penalty for being a smarter criminal? That offends my senasabilities. There should be an extra penalty for NOT having the proper tools for the job with you.

    Any sort of system of punishment should be based on actual harm done and (depending on the crime) malicousness of intent (murder with intent and a car accident that kills someone have similar harms, but are really very different crimes). Not on HOW the person commited the crime.

    I see fundamentally no difference between breaking into someones house and killing them with your bare hands, and shooting them in the head with a gun. Either way its murder. Same crime, same punishment. Why should the penalty be more because "he used a tool to commit the crime". Or reverse it...why should the penalty be LESS because a person didn't use a tool?

    Its the same crime afterall. Same harm.

    -Steve
  • by heikkile ( 111814 ) on Wednesday May 02, 2001 @07:28AM (#251545) Homepage
    2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form?

    Academic study of any small detail of the film. Music history depends a lot on studies of the papers and inks used in making original manuscripts. No photocopy, how ever good, will suffice for this sort of academic research.

    Classical studies tabulate the frequencies and distributions of individual letters, words, phrases, and constructs in old texts, and gain useful insight into questions of authorship, for example which roles Shakespeare himself played in his plays, and how repeating those lines had a subtle effect to his language in following plays...

    I would expect future studies of film history want to make similar studies on various technical details of different films. For example, studying westerns, one researcher might need to get a slowed-down close-up view of every time a gun was drawn in various films... Or similar close-ups on various film tricks (digital and others) to show and appreciate the craftmanship of the makers.

  • by rograndom ( 112079 ) on Wednesday May 02, 2001 @10:04AM (#251547) Homepage

    And aren't DVDs essentialy computer software?


    --
    andy j.
  • by Fesh ( 112953 ) on Wednesday May 02, 2001 @11:54AM (#251549) Homepage Journal
    So let's outlaw DivX as well. It's obviously a digital canvas sack that a digital burglar puts the loot in after breaking and entering with the digital crowbar.

    *shakes head*


    --Fesh

  • by Fesh ( 112953 ) on Wednesday May 02, 2001 @12:01PM (#251550) Homepage Journal
    Whoever has in possession any device, explosive, or other instrumentality with intent to use or permit the use of the same to commit burglary or theft may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $5,000, or both.

    Notice the bold bit. Why is it, do you think, that they phrased it that way? It's what we've been saying all along, posession should never be the sole argument for applying criminal penalties to a person. The FLAA's would rather just toss you in jail for having things like DeCSS because it's just the teeniest bit harder to prove intent.

    Wow. The DMCA is overly broad because the FLAA's are lazy. Who'd have thought?


    --Fesh

  • by Trinition ( 114758 ) on Wednesday May 02, 2001 @05:51AM (#251554) Homepage
    So 2600 can't link to DeCSS because they're l33t hax0rs. However, the New York Times can link to DeCSS because their legitimate reporters.

    What if 2600 linked to the New York Times article? The article itself isn't illegal, so they're not directly linking to anything illegal. The linkt o the illegal material would now be indirect. But since 2600 is still a bunch of leet hax0rs, their intent is the same -- so should that indirect link be illegal?

  • by nlvp ( 115149 ) on Wednesday May 02, 2001 @07:06AM (#251555)
    I agree with the fair use defence, but when I think about this outside the direct context of the law, I worry more about the control the MPAA is trying to get over the channel being used to distribute the content I have bought.

    I think that this is also covered by fair use.

    When I buy the content, I have the right to view it - in its purest, unadulterated form, on any device capable of reading the medium I bought it on.

    If I choose to have a Linux box reading my DVD and exporting a digital quality signal to a projector, I should have the right to do that - after all, I am just watching the content I have fair use rights to in an attempt to enjoy it.

    But now I have no choice over the medium I use - I have to use a DVD player that is licensed by the MPAA - and if they choose not to give a license to my faviourite distributor of hardware/software (in my case the Open Source Movement), then I have no choice but to go to someone who has been "vetted" by the MPAA.

    This is bad.

    Choice has an economic value - if you limit the choices people have, you impose limits on their enjoyment because you impose upon them a limited set of options. Capitalist economics provides a huge amount of choice to people because when something people want doesn't exist, someone goes and creates it because that creation will generate value - people will be willing to pay for it if it is a good alternative to what is currently available on the market.

    The DMCA as it currently stands is an economic aberration as it allows a company that traditionally only makes content, to extend it's economic and legal reach vertically into the distribution devices downstream of it's market area.

    I believe that were these companies to try to do this by acquiring the companies that make the hardware, they would be blocked (or at least investigated) via Anti-Trust legislation, but this provides them with a nice way of controlling the distribution channel all the way to the box in the customers house without having too much attention drawn to the power they are obtaining.

    This is anti-competitive, and anti-consumer. If I buy the content, then I have a right to watch it - the link back to the maker of the film is not, in my opinion, strong enough, for them to be allowed to force me to buy an Orwellian television set that will tell me what I can and can't watch/clip/copy/manipulate - and then impose upon me the added restriction of not being allowed to figure out how the device that controls what I can watch works, because reverse engineering is illegal.

  • by KahunaBurger ( 123991 ) on Wednesday May 02, 2001 @10:18AM (#251571)
    The plans for the bridge (the design) is most certainly expression.

    however, while I am not a lawyer, I'm fairly certain that said plans are not "expressive speech" as used in constitutional law.

    All information is not expressive speech. I believe the term was coined in response to non verbal protests such as the black arm bands in "Tinker..." or flag burning. I may be wrong. But we need a solid legal definition of "expressive speech" before everyone goes running around trying to say what is and isn't.

    For myself, I don't buy the all code is expressive speech line in the slightest. The lawyer quoted seemed to be trying to prove it by showing that code could be USED as expressive speech, therefore code IS expressive speech. BS. There is very little that a creative person cannot do or create in a way that makes it expressive speech. Those examples do not make everything in the world expressive speech when done without that special intent.

    For instance, in the midwest farmers growing feed crops such as alfalfa will use a special machine to turn the harvest into a bunch of big bales that look vaugly like 6 foot tall cinnomon rolls. (then the neighboring kids play on them all fall and as adults discover that just sniffing a bag of pet alfalfa makes them relaxed and happy, but thats a different subject.) A farmer with something to say could do his baling in such a way that passengers on an airplane flying above would see little dots spelling out "I love my guns" or "go Royals!" or any other expression he wished to make. And his alfalfa baling would then be a form of expressive speech. But no one in their right mind would say that this possibility makes all baling a form of expressive speech.

    Kahuna Burger

  • by Grab ( 126025 ) on Wednesday May 02, 2001 @05:36AM (#251573) Homepage
    The most obvious example of fair use I can think of is quoting. You have a right to quote excerpts from a work up to some limit (10% of the work IIRC) for research purposes.

    This is basically designed for textual sources, but there's no reason why it shouldn't apply to music and video. If in 10 years time you're writing a dissertation on the visual effects used in the Star Wars films, you MUST have access to the originals so that you can analyse it frame by frame and pixel by pixel. A grainy, noise-added copy just isn't good enough to base your work on. For a textual analogy, a literature student has to work off the original source-book, not off a Reader's Digest condensed version!

    Grab.
  • by DrgnDancer ( 137700 ) on Wednesday May 02, 2001 @07:28AM (#251596) Homepage

    This is the part I found interesting:

    He started with a hypothetical: What if someone developed a program that could shut off the navigation system in commercial airplanes? What if someone developed a program that could shut off smoke detectors in public buildings? Surely, he said, the government could ban the publication of programs which were a threat to people's lives.

    The US attorney is obviously argueing that writing and diseminating such programs is illegal. I don't think it is, in fact such programs must exist because it is necesary to turn both of these devices off at times. It is not the writing of such a piece of software that is illeagal nor the disemination, it is the breaking into a computer system to use it, and the use of it for a malicous purpose. This is, in fact, exactly similar to how DeCSS should be viewed. It should not be illegal to write, disseminate, or have the software, simply to use it in illegal ways. It's already a crime to rip a DVD and post it on the net, it's not a crime to rip a DVD and put it on your hard drive for easier viewing. DeCSS is a tool with both legal and illegal uses, but the crime is in the specific uses, not the tool.
  • by www.sorehands.com ( 142825 ) on Wednesday May 02, 2001 @05:53AM (#251602) Homepage
    Books containing instructions on how to make a bomb are legal. And books explaining how to convert a non-automatic to automatic weapon are legal.

  • by elbuddha ( 148737 ) on Wednesday May 02, 2001 @08:36AM (#251608)
    If code isn't expressive, then how can copyright law be applicable to code?

    If code is copyrightable, then it must be expressive.

    Either DeCSS is free speech, or there is no such thing as software piracy.
  • by clare-ents ( 153285 ) on Wednesday May 02, 2001 @05:57AM (#251610) Homepage
    I contend that programs aren't expressive.

    Hence they can't libelous or slanderous.

    Here is the source code for a program I wrote. It's a shame that it's a bunch of meaningless non-expressive symbols.

    ------- BEGIN CODE -----------
    #!/usr/bin/perl

    $notlibel = endofrant;

    The MPAA are child pornographers. They rape innoncent children, including their own offspring. They secretly hoard chemical, biological and nuclear weapons.

    endofrant
    ;

    if ($notlibel) {
    print "We thing the MPAA are great";
    }
    --------- END CODE -----------
  • by rhadamanthine ( 157807 ) on Wednesday May 02, 2001 @05:25AM (#251629)
    Here's one: A movie reviewer takes a look at a movie just out on DVD. During his time watching the DVD, he realizes that there is a horrible technical glitch, or some endemic glitch in the video transfer. In order to demonstrate the problem, he would need to use DVD quality video. If he cannot take a clip from the DVD, but instead has to film in on a VHS camcorder, the quality will go down even more, and thus distort his (legitimate) beef with the movie.
  • by sg_oneill ( 159032 ) on Wednesday May 02, 2001 @06:26AM (#251631)
    Unless I have been living under a rock for a while and "New York Times" is actually slang for a means of stealing telecom services, I think that his analysis is pretty hard to fault here. 2600 magazine has a long history ("Fun at Costco") of giving people instructions on how to knowingly break the law, and it's pointless to pretend otherwise.
    Bollocks. In my daily work as administering my work network, I'm having to review security on various elements of our network. The reality is *ANY* network admin worth his or her salt NEEDS sites like 2600 to figure out how hackers work and what the techniques are and what to look out for.
    Relying on ms security updates is careless, and sure don't help when the problem is with the ACME DSL gizmo or whatever.
    Do you reeeeeealy believe defence against malicious crackers comes from anyware else than from the barrel of a smoking gun? 2600 is actually doing the non-hacker community a favor, although in private they'd hate me for saying it. And what on earth is malicious about DeCSS anyway? Are people really going to pirate a multi gigabyte AVI file over the net?
  • by Psiolent ( 160884 ) on Wednesday May 02, 2001 @11:43AM (#251637)
    This does not define fair use as an ABSOLUTE RIGHT, it mearly EXCLUDES it from the definition of infringement.

    That is ridiculous. There either is fair use or there is not fair use. Excluding fair use from infringement means you have fair use. It's simple really.

    Again, the producer is under no obligation to make te work available, even under "fair use"

    The question is not whether the producer has to make the work available. The question is if the producer has the right to make it illegal for fair use. The producer does not have that right.

    Many high priced periodicals are printed in such a way as to prevent copying. Does this interfere with your rights? No.

    But if you develop a method to copy those periodicals for fair use, should it then be illegal. Further, DeCSS does not facilitate copying, it facilitates using. This would be like the publisher of the periodical saying you must purchase their special reading light to see the ink on the pages, and any attempts to make your own reading light are illegal.

    My paycheck is printed on paper that prints VOID across the check if I copy it. I should call my employer and demand that they stop doing this because it infringes on my rights!

    The point of the "VOID" is to allow one to know if a check is a copy. This has nothing to do with copyright infringement and everything to do with preventing theft. You analagy is complete nonsense.


    -----
  • by streetlawyer ( 169828 ) on Wednesday May 02, 2001 @05:24AM (#251645) Homepage
    But somehow under Alter's analysis, 2600 came up lacking while the NYT did not.

    Unless I have been living under a rock for a while and "New York Times" is actually slang for a means of stealing telecom services, I think that his analysis is pretty hard to fault here. 2600 magazine has a long history ("Fun at Costco") of giving people instructions on how to knowingly break the law, and it's pointless to pretend otherwise.

    Furthermore, two of michael's points seem to contradict each other. We have

    Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required,

    and

    Apparently, in the attorney's world, once that lone copy is made, it pretty much automatically puts itself on the Internet with no further acts by any individual

    Which misses the states' point about DeCSS -- it's uniquely dangerous precisely because it *isn't* a copying utility -- it's a decryption utility. Because of that, it makes it possible to "rip" protected content and convert it to all manner of different (more easily traded and recopied) formats.

    I make no comment on the rights and wrongs of the case, btw.

  • by swm ( 171547 ) <swmcd@world.std.com> on Wednesday May 02, 2001 @05:53AM (#251647) Homepage
    Do the lawyers read the briefs before they argue the case?

    she stated that computer programs were expressive, and the judge asked her to explain....I felt the response was lacking.

    This was discussed extensively in the Amicus Curiae briefs, for example, at

    He didn't use the "digital crowbar" metaphor, but insisted that publishing DeCSS was like publishing the combination to a bank vault in a newspaper

    The EFF/2600 Appeal Brief in MPAA v. 2600 Case [eff.org] says

    For instance, the District Court analogized the injury due to publication of DeCSS to the publication of a bank vault combination in a national newspaper, indicating that such publication could be restrained. Universal at 315. The District Court, unfortunately, is mistaken. In Chicago Lock v. Fanberg, 676 F.2d 400 (9th Cir. 1982), the defendant was sued on a trade secret theory for selling books that contained lock key codes that enabled persons to more easily duplicate keys to plaintiff's locks. The Ninth Circuit found that these books could be published because the lock key codes were obtained through reverse engineering.
  • by mttlg ( 174815 ) on Wednesday May 02, 2001 @05:43AM (#251656) Homepage Journal
    1. Why and how is a computer program expressive speech?

    The problem here is that for most of us, this point is so intuitively obvious that it becomes difficult to express to others. Code, like any form of speech, is composed of elements that by themselves are of little value (a single letter or character, a pixel, tile, or small quantity of colored material, etc.). The expression comes from combining these elements into some functional form.

    For example, an algorithm expressed in plain English is speech (I hope everyone can agree on that) - it is a description of one person or group's idea of how something can be done. That same algorithm, when implemented in code, doesn't suddenly lose its status as speech - it still has the same qualities, only in a different form.

    To those who don't understand it, code is just nonsense. To others, code can be seen as an expression of a concept in terms of fundamental structures, just like a mosaic or a philosophical argument. Computer programming is just a medium that, like television, audio, or printed media, can be used to express ideas, entertain, educate, solve problems, or just waste time.

    Looking specifically at DeCSS, it can be difficult to see the speech issues involved, just like if you try to judge the speech content of television based on watching one of those silly "reality" shows. If you step back and look at the potential for expression though, it becomes obvious that programming is a medium for speech and expression, and that speech takes the form of code.

  • by Golias ( 176380 ) on Wednesday May 02, 2001 @08:09AM (#251661)
    Fair use is an EXCEPTION that allows certain infringing actions to not be considered legal infringement. Fair use does not allow you to use copyrighted material in any way that you chose.

    You were not listening to what the parent post was saying.

    An example of fair use that requires DeCSS:

    Suppose I am running an educational web site on the craft of film-making. To demonstrate the use of deep-focus lenses, I want to make a high-resolution 20-second clip from "Citizen Kane" available for download, so my students can see what I am talking about. DeCSS allows me to decript my "Citizen Kane" DVD, extract the clip, and save it to my FTP site. Doing something like this is 100% legal under current Fair Use laws. Without DeCSS, making this digital copy is impossible... I would be forced to settle for a low-quality analog duplication which would not serve my purpose at all. Therefore, DeCSS would be restricting my Fair Use rights as an educator.

    Is the point starting to sink in with you now?

    The content on the DVD is licensed to you with certain restrictive conditions

    Yes it is, but those restrictions do not apply when they conflict with current laws concerning Fair Use. To insist otherwise is an attempt to extend copyright protection to areas in which the law does not provide, which the courts can (and should) (and probably will) shoot down.

  • by Prior Restraint ( 179698 ) on Wednesday May 02, 2001 @06:42AM (#251669)

    ...the judges seemed fairly skeptical..., trying to insist that widepsread and massive copyright infringement due to DeCSS must be occurring, somehow, somewhere. It just must be.

    Since when is this a valid legal argument? IANAL, but I always thought "probably" didn't cut it as far as evidence goes.

    Surely, [AG Atler] said, the government could ban the publication of programs which were a threat to people's lives.

    As others have pointed out, DeCSS is not life-threatening; at most it's proft-threatening. I think a good "slippery slope" argument; extend it to its extreme.

    ...picketers were successfully prevented from picketing due to the functional intent of the picketing, which was apparently to violate certain laws.... Alter argued... the intent of distributing DeCSS is to promote violations of copyright law, therefore the speech part of such distribution can be ignored by the courts...

    This is a bad analogy. (Adopting the opposition's opinion for argument's sake only.) The purpose of DeCSS is to violate copyright law, allowing its speech component to be ignored. Alter is arguing that the NYT isn't permitted to cover the picketers, because the picketers were committing a crime.

    [Alter] stated flatly that the problem with digital works is that they can be copied.

    Actually, doesn't this beg the question of why the MPAA is going to digital at all?

    The point Alter narrowly evaded evaded it (sic) is that the act of publishing a copyrighted work to the world is a copyright violation in the traditional sense, and is punishable under traditional laws.

    This is something that needs to be driven home to the judges, because it serves as yet another example of the "less restrictive means" Congress is obliged to use.

    I hope these are some useful points Ms. Sullivan could raise.

  • by bernz ( 181095 ) on Wednesday May 02, 2001 @07:02AM (#251671) Homepage
    I attended Film School [emerson.edu] about 5 years ago. I earned a BS in Animation there, so I didn't just take Film I or something. I mean I spent a good solid year WATCHING FILM.

    A big part of sitting in film school is watching movies. We prefer to watch them in the purest form we can because color, framing and grain of the film matter a great deal for the expression of the work. Most films we watched on FILM CELLULOID in classes or theaters. We weren't expected to bring them home and watch the celluloid.

    We WERE expected, though, to watch the film on our own for private analysis to extract techniques (especially for learning Stop Motion Animation) and to really figure out what's going on. We had a film library with videos and Laser Disks (about 5 years ago, remember) that had to be checked out and watched in the library in these little porno-like booths. At the time, that's fine, but waiting in line to watch a film plain old stinks.

    I also worked for the School's IT dept and at the time, Yahoo rated us the #1 Wired Liberal arts school in the country for our kick ass network and great intranet and internet access. We had this great technology (students could do their editing from their rooms calling up X windows from the avid machines in multi user mode, among other things).

    I didn't realize it THEN, but i realize it now, that a digitized library of films from DVD clips in their pure form would be a great solution to the film library problem. the students can watch the film in the second best form (celluloid still rocks) which is FAR better than VHS copies or LaserDisks watched in little booths. Multiple students could watch HIGH QUALITY motion pictures for educational purposes if the DVDs could LEGALLY be decoded.

    -----

  • by metis ( 181789 ) on Wednesday May 02, 2001 @05:26AM (#251673) Homepage
    First and foremost, time shifting require the same quality as the original. DeCSS is about DVD, but the precedent will come haunting us with HDTV and other boadcasting models in the future.

    DeCSS is also useful to evade country codes, which is also a fair use issue and also requires a same as original quality.

    Even when quality can be inferior, it cannot be noticeably inferior without denting significantly into fair use right. The degradation introduced by xeroxing a book or using a VCR or tape is acceptable, because these techniques were at the background of the present legal situation. mandating degradation beyond that ( like shooting the signal with a camera ) should be seen as watering down fair use.

  • by boing boing ( 182014 ) on Wednesday May 02, 2001 @08:09AM (#251674) Journal
    Please Moderate the Parent Higher. It contains a good answer to the hypothetical brought up by the District Attorney.

    Intent is definitely a large portion of the law. In fact, the plantiff is clearly arguing on the basis of intent, but their use is very selective. All software is merely a tool. It may be a tool to create a beautiful piece of art, it may be a tool that will automate some boring job, but a tool cannot be banned if it has a legal use.

    It can be illegal to possess the tool if the intent is to perform an illegal act. But if there is substantial doubt about the objects use, it can be legal. There are a number of cases about concealed "weapons" like scissors that have given the benefit of the doubt to the defendents.
  • by SubtleNuance ( 184325 ) on Wednesday May 02, 2001 @06:53AM (#251678) Journal
    I would like to ask the judge this:

    One of the following is a binary representation of No Logo by Naomi Klein [chapters.ca]; the other is DeCSS:

    01010000100001010101010101000010000101010101010100 00100001010101010101000010000101010101010100001000 01010101010101000010000101010100101000010000101010 10101010000100001010101010101000010000101010101010 10010101000010000101010101010100001000010101010101 01000010000101010101010100001000010101010101010000 10000101010101010100001000010101010111010100101010 0101010010101001010100101010

    and

    10101001010100101010011010100101010101001010100010 01010101010010101000100101010101001010100010010101 01010010101000100101010101001010100010010101010100 10101000100101010101001010100010010101010100101010 00100101010101001010100010010101010100101010001001 01010101001010100010010101010100101010001001010101 01001010100010010101010100101010001001010101010010 1010001001010101010010101001

    Please tell me which one is a work of art, an act of expression or an instance of speech. Please identify which should be protected as Free Speech.


    Just for shits and giggles, show him this:

    01010010101001010100110101001010101010010101000100 10101010100101010001001010101010010101000100101010 10100101010001001010101010010101000100101010101001 01010001001010101010010101000100101010101001010100 01001010101010010101000100101010101001010100010010 10101010010101000100101010101001010100010010101010 10010101000100101010101001010100010010101010100101 010001001010101010010101001

    What we have above is his doctoral thesis, his last ruling or a love letter to his wife. It may not be obvious to him, but there are some people (not including myself) who would be able to identify each of these instances.

    It is beyond comprehension why this case is even being considered - it is obvious that the sole motivation to the DMCA is to protect profit in exchange for liberty and freedom. When discussions of this type are so clearly oppressive one has to consider what the *REAL COST* is. There are *VERY* few things that should be considered as reason to limit liberty - and MPAA profit isnt even approaching this group.

  • by SubtleNuance ( 184325 ) on Wednesday May 02, 2001 @06:27AM (#251679) Journal
    . So apparently something like this:

    "This is a scholarly discussion of DeCSS. We are a major media outlet, and would never encourage lawlessness, so this link to DeCSS is okay."

    ... is fine, while this:

    "Hey all you l337 h4x0rz, come get DeCSS and use it to copy movies and watch them automatically distribute themselves via the Internet!"

    This is a very scary idea. Essentially you are creating a case where certain *people* are allowed 'free speach while others are not. This is a terribly slippery slope to a point where a person may not be officially sanctioned to speak freely. This is much different from the 'shouting fire in a movie theater' ban on 'free speach' that is accepted (maybe wrongly) as being a fair restriction to free speach - and drawing the legality based on the speaker, his motivation, his status, and probably (and very sadly) his bankbook.

    For any American reading this: this is what happens when you abandon you allow your government to openly take bribes and sell your democracy to lobbyists and Corporations. It these people hadnt been given so much power you wouldnt see laws like these that begin to put profit and corporate interest ahead of citizens.

  • by guinsu ( 198732 ) on Wednesday May 02, 2001 @05:19AM (#251698)
    Maybe they should work the angle that code is expressive because anything that can be expressed in code can just as easily be expressed in English or Mathematics. All it is is a sequential set of instructions and there have even been translators written to convert various programming languages from code to English and back. So by banning code you are banning sequential lists of instructions in English since they are one in the same.
  • by DmitriA ( 199545 ) on Wednesday May 02, 2001 @07:28AM (#251701)
    The problem I have with this argument is where to draw the line. If you say that C or Assembly program is speech, then what about machine code (yet another language form)/binaries? What about engineering plans or architectural blue prints? What about the commmand you type when you use grep to search for something? It uses regex, which is also language... These are all valid expressions in their own languages but I have great difficulty referring to them as "speech".

    I understand the argument that since programming languages are designed for humans not machines, it must be speech. i.e. a machine doesn't need your program to be written in C - it only understands 0s and 1s. We write in C/Perl/Lisp/(your favorite language) because that code can be efficiently translated into the language that a machine can understand and execute and at the same time be readable to us (well, in case of Perl, that may not necessarily be the case).

    HOWEVER, the primary purpose of a program written in a programming languages is so that eventually it would be translated to machine code and executed on some processor and perform some task. (at least that's what happens 99% of the time). If you buy this argument, then ANY TYPE of automated instructions to machines (something as simple as moving a mouse, perhaps) have to be considered speech as well, and I'm not sure that there are a lot of judges willing to stretch the First Ammendment that far (to call almost everything that we produce in life as speech)

    At any rate, I do believe that DMCA is evil and must be overturned, but I just don't think that using this argument that any computer code is speech is going to get us very far...
  • by Xentax ( 201517 ) on Wednesday May 02, 2001 @05:30AM (#251712)
    The other issue is that the MPAA has used this case to turn around and harass other sites and the ISPs serving them since this initial win. There was a whole new round of C&D letters (I'm sure people can make these available) after the case, warning ISPs for example that with this win, there was legal precendent that allowing DeCSS source on sites hosted by them could result in legal action, blah blah blah.

    No chilling effect my port peanut.

    Xentax
  • by onion2k ( 203094 ) on Wednesday May 02, 2001 @05:34AM (#251715) Homepage
    1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?

    A traditionally coded application, from Office through to Quake, the Linux kernel to Windows XP, doesn't really express anything. Its a means to an end. Theres no real intended statement, its a tool. Just as the words in my documentation aren't a novel, and my nicely presented flowcharts aren't art. They serve a definite purpose, and that isn't one of expression.

    However, thats not to say code can't be an expression. If I write 'perl -e print 'Lawyers suck!'; some would argue that its just a bit of code, its just something that gets interpretted, its not art. Yet I might argue it is art. Art, and expression, is subjective. I could stand in front of the Mona Lisa and say 'Its just an oil based compound we call 'paint''. While technically correct, that doesn't stop it being art.

    Just the same is true of DeCSS. On one hand its just a bit of C. On the other it demonstrates some deep rooted belief in freedom. Its subjective.

    Of course, the difficulty arises persuading a court of law what art and expression is all about. Sometimes I'm very glad ianal.
  • This is such a great argument. This forces the MPAA to pit its absurd assumption against another one, that programs should be copywriteable, so if the MPAA wins this argument at this level of appeal then the entire non-free software industry will be shitting a brick. Not the best argument logically, but strategically it's pure genius!

    I have another suggestion: Hal Abelson gave a speech at Ars Digita in which he went the other way- that literary expression, when it's good, uses algorithmic/programming elements. This breaks down the barrier between speech and code in an interesting way, that is, not by arguing that code is speech, but in fact that speech is code.

    Here is an excerpt from the abstract for this talk:
    "I contend that at this moment in history we are at the beginning of an intellectual revolution based on the assimilation of computational ideas into our culture. We have been programming universal computers for about 50 years. The practice of computation arose from military, scientific, business, and accounting applications. Just as the early Egyptian surveyors probably thought of themselves as experts in the development and application of surveying instruments, we have developed a priestly cult of computer scientists. But, as I have pointed out: Computer Science is not a science, and its ultimate significance has little to do with computers. The computer revolution is a revolution in the way we think and in the way we express what we think."

    You can stream the talk (realvideo format) here [aduni.org], or you can download it here [64.64.103.140].

    Bryguy

    ps- another thought- the difference between source code and machine code is that source code is specifically designed to be comprehensible to humans, hence it is expressive of an idea rather than pure instruction.

  • by Spinality ( 214521 ) on Wednesday May 02, 2001 @09:04AM (#251729) Homepage
    Michael has written an excellent summary and highlighted many important points -- high marks. I am very concerned about the chilling effects of litigation, legislated norms of behavior, and ever-increasing constraints on my available forms of expression. Every year, the situation in this country seems to deteriorate. And the fact that well-meaning civil servants are shackling me "for my own good" only makes it worse and more insidious.

    The question of software as a protected form of expression is a complex one, and in many cases the issues are idiosyncractic. Two people can stand in a museum and argue "That's not art"; "Yes it is." Similarly, people differ in their perceptions of software and its scope and purpose.

    Let me report two bits of first-person anecdotal evidence.

    I became a passionate software developer when I realized that writing software 'felt' like composing music. I had the same sense of artistic satisfaction, of creativity, of building something tangible from raw ideas. The aesthetic of programming became a dominant part of my thinking. Like many serious programmers, I labored over the artistic aspects of the development process: elegance of design, consistency, ingenuity of organizing and naming components, crafting clear and interesting comments -- bilding systems that were beautiful. Many hours and days were spent on tasks that can only be described as "art for art's sake": implementing details that had no practical requirement but yielded a more pleasing result, either in the behavior of the resulting system or, more significantly, in the expression of an elegant design in the source code itself. For me, it didn't matter whether an audience of hundreds or thousands could see my code. The expressive nature and issues were highly personal, and affected me in precisely the same way I feel when improvising or composing music. The expression is not for an audience, but for myself, and for the sake of an artistic result in itself.

    "Fair use" is another doctrine that always strikes me as personal. Who is to dictate the boundaries of an appropriate personal use of a recorded performance, a piece of literature, a graphic image? In the eyes of an intellectual property attorney, for example, the purpose of viewing a DVD movie might simply be to hear the dialogue and see the pictures, so therefore some image degradation wouldn't matter. But as another poster has commented, noticing the fine details of shadow and light in a puddle on the ground might be just as important to one viewer as hearing the punchline is to another. Some viewers are passionate about noticing anachronisms and errors in films -- the little bits of telephone wire sticking up above the trees in a 16th Century period piece, or the out-of-era kitchen appliance in a WWII drama. These details require the best possible fidelity. Who can say that these are inappropriate interests, and beyond the scope of "fair use"?

    In both of my points, I find that we are struggling with the age-old question of "what is art?" For me, the most satisfactory answer to this question, and to another tough philsophical question "what is science?", is this: "What the practitioners do." Art is what artists do, and science is what scientists do. When in doubt about where to draw the lines, look at respected members of each community, and consider their own priorities and methods as they invest their time and energies in their chosen disciplines.

    In the case of software, I assert that software is (can be) a protected form of expression for this reason: Because great software writers view what they do as art, not as a purely functional and purposeful activity. If there are software artists, then there is software art. Similarly, if software can be pure science, a form of pure scientific research, then there is software science. If software can be art, or pure science, then it must be protected. We place creative limits on artists and scientists at our peril.

    JMHO -- Trevor

  • by corporate zombie ( 218482 ) on Wednesday May 02, 2001 @09:24AM (#251731)
    If you can read and understand this:

    sub gcp { join("\0",@_)=~/([^\0]*)(?:[^\0]*\0\1){$#_}/s;$1 }

    then you are educated. If, as I have, you keep it in its own file and occasionally refer back to it for that sense of power and beauty-of-form it strikes in you, then you already know that programming languages are expressive. I executed the code to distill it for performance. I keep it alive in my mind by the occasionally re-read because it is beatiful.

    Perhaps it is a programmer's thing. I don't expect everyone to understand but that's ok because I do. What isn't ok is people trying to tell me I am wrong about how I feel about a bunch of characters strung together.

    Here's another bunch of characters strung together:

    We, the people of the United States, in order to form a more perfect Union...
    I would be very interested if someone could point out exactly why one bunch is "better" than the other.

    -CZ

  • by willith ( 218835 ) on Wednesday May 02, 2001 @06:25AM (#251732) Homepage
    I won't reproduce it here, but I will link to it. It can be found here [tuxedo.org], in the appendix of the Jargon File.

    If ever a treatise was written about Code as Art, this is it.
  • They'll pry my "Digital Duct-Tape" from my virtual hands when I'm dead!

    (After all, it's really hard to remove.)
  • I program in order to write
    If I spoke in order to write
    I would write about speaking
    If I stole in order to write
    I would write about stealing

    But I program in order to write
    And thus my thoughts must be organized
    Presentable and actually do something
    Though a spontaneous poet I'm not yet

    If I program and program all day
    And like Lewis Carroll write all night
    Soon a new Alice in Wonderland tumbles forth
    (That mathematically-correct fairy tale)

    And the art of poetry will be enhanced
    Not by math but by logic, and then
    The art of programming will be noble
    And the court won't wonder whether
    Programming can be expressive, Hooray!

    I am a writer. On the side, to make a living, I am a programmer. The reason for my choice to be a programmer is not whimsical, but deeply rooted in my needs as a writer. As a writer, I need to be able to do for-pay work which does not exhaust my soul, leaving me no depth or clarity when I sit down to write. My whole life nurtures the art of writing, and I must be careful in what I choose to do with my non-writing life, if I want my writing to reflect anything notable.

    In other words, I discovered that to write well, I write what I am. Of course, what I am can be metaphorized.

    For example, I may choose to fund the art of writing as a salesman. Then, when I sit down to write, I write about conquest and competition and slyly leading my clients to the purchase point. While these abilities are demanded of a salesman, and many salesmen would then read my writing even if it were metaphorized, this is not what I am seeking to write. I seek to write lucidly, with well-organized thoughts, on various ethical issues.

    As such, I find that my "day job" as a programmer is perfect! The task of organizing thoughts into a clean, presentable manner, is absolutely demanded of me during the day. When I sit down at night to write, the same techniques apply. All I have to do is research my topics (also demanded of a programmer) and then write, both synthesising (programmers call it cut-n-paste), and creating entirely new objects.

    Note Larry Wall for a man who infuses poetry with programming... With these thoughts, could I be anything other than just another Perl hacker?

    Give me some time, and this essay would be shorter and have more content. :-)

  • An example where a perfect digital copy is absolutely necessary - any digital text.

    With images and sound, the dropoff in quality is a gradual degredation, and it is hard to draw firm lines as to exactly when and where the image is no longer the same image anymore - or when the sound is no longer the same sound. Because it is a gradual drop-off there will always be some variation from person to person as to when that point is.

    However, with a text it is a simple matter. You either have the text, complete and whole, or you don't have it. If I buy a cdrom with the complete works of william shakespeare on it, I need to be able to copy out the text of hamlet exactly. If the text gets mangled or corrupted in the copying process, it ceases to be the same text and therefore the copying process involved is insufficient for my rights of fair use. Hamlet's solliloquy is a given set of text, and as soon as you lose or change a few letters or words, it is no longer Hamlet's solliloquy - simple as that.

    Now, if we take this one step further, and say that by its very nature any digital medium is a "textual" representation of audible / visible media, then the extension of the above becomes clear. In an analogue medium, there is no clear-cut way of transcribing an image or a sound exactly, and so a degredation of quality is intrinsic to the copying process. But a digital medium, by reducing any analogue media to a common set of binary values, it "textualizes" that medium - creating a set that is exactly reproduceable.

    Now any cd or dvd player or computer acts as a very rapid "textual interpreter" reading and analyzing what is essentially a long body of written information and interpreting it into a form of sound and / or video. Now when we are sold a cd or a dvd, what we are purchasing is exactly that - a body of "text". We are not licensing the right to interpret that "text" as music necessarily, but we are purchasing that "text" as a finished product. So anything that prevents one from copying this "text" in its entirety is preventing fair use, because the resulting copy is no longer the same thing as the purchased product.

    We might accept that there is no getting around a loss in quality when one makes a copy of a symphony from an LP to an audio cassette, but I think it would be absurd to accept that dropping a few notes here and there from a musical score of that same symphony would in any way qualify it for being "good enough" for fair use.

    So in a nutshell, that's my perspective. Digital media have to either be exactly reproduceable or they simply are no longer the same thing.
  • by rknop ( 240417 ) on Wednesday May 02, 2001 @05:22AM (#251772) Homepage

    A hypothetical situation where fair user might require the original content in its full glory. You're a researcher who wants to evaluate the efficacy of different compression algorithms-- compression vs. quality loss, etc. Probably you do most of your research on some sample case. Your funding agency, however, wants to see how the compression works on a "real world" example. If your funding agency is not the owner of the copyright of material they want you to test it on, you need to have pieces of that material in its full, undegraded glory in order to perform your tests.

    Hypothetical, perhaps a bit contrived, but you get the general idea. No infringing is going on-- no distribution whatsoever is going on. If I want to try this just for fun in the privacy of my own home (condudcting one's own scientific experiments is a tradition in this country that goes back to Ben Franklin), there's nothing to stop me. But if I'm prevented from making personal, fair-use, full-quality copies of the material, I can't do an experiment such as I describe.

    -Rob

  • by rknop ( 240417 ) on Wednesday May 02, 2001 @05:32AM (#251773) Homepage

    Why just the judges understand how code can be art? Hell, I don't understand how wrapping a motercycle with cellophane (or whatever that was) is art, but lots of other people seem to think so. Just because it doesn't sound like art to me doesn't make me think that the activity ought not be protected under freedom of expression.

    Anybody who is a programmer and enjoys doing it has seen code which he thinks is beautiful, or at least elegant. Two different ways of doing the same exact thing, both functional, but one might be ugly, while the other will elicit noises of appreciation from good programmers. Ask any programmer, and I'm sure they will all be able to think of cases where this has happened to them. Just because the judges don't know enough programming to understand this isn't cause to restrict freedom of speech.

    Saying that fair use copying creates a clear and present danger is disinginuous. IF something which might be used for infringing purposes must be restricted just to prevent that possible case, then cars certainly should immediately be outlawed in this country. Bank robbery getaways, hit-and-run killings, speeding on the freeway, all of these things are illegal and enabled by cars. Outlaw those puppies.

    -Rob

  • by rknop ( 240417 ) on Wednesday May 02, 2001 @05:37AM (#251774) Homepage

    The painting analogy is flawed. The MPAA lawyer would like you to believe that copying restrictions on DVDs are similar to you not being forced to let people into your living room just because you've hung a painting there. (Assuming I've interpreted the article correcty.)

    A much better analogy would be that after you buy a painting, the artist may come in to your home and tell you where you can and can not hang that painting, how long you can have it up, and excatly when you can have it displayed. You would be forced by law to do exactly as the artist demands. This is what the MPAA Is doing with copy restrictions (and DMCA anti-circumvention) on DVDs. You have something which you've bought, but which they are now telling you how you can and cannot use it in the privacy of your own home. (E.g., "You cannot play this on a computer running Linux.")

    -Rob

  • by SlippyToad ( 240532 ) on Wednesday May 02, 2001 @08:38AM (#251778)
    How I wish this were earlier in the week, when it seemed I had infinite mod points. If demonstrated, this point could be made to show the blatantly anti-competitive nature of the MPAA's action and ensure an antitrust investigation. Not only does CSS prevent people from making DVD players, it would make it possible to lock out amateur DVD distributors -- putting their own work out on DVD. I see the same sort of thing looming with SDMI and other secure music distribution technologies.

    The RIAA and MPAA have to be aware that with digital technology, the quality of recording and film equipment that used to cost tens or hundreds of thousands of dollars now costs hundreds of dollars, and amateur filmmakers and musicians now have cheap personal access to what was state-of-the art twenty years ago, and most of that technology can be installed in a home computer. With the equipment I now own, which costs about what a personal PC does, I can make a multi-track recording of the same quality that you would find in the store, burn it to a CD, and sell it all without ever having to haggle with a record company. Most people I've played it for cannot tell the recording fidelity from that of a commercial CD.

    I cannot help but notice that most anti piracy mechanisms will, if widely adapted, shut me out of the current standardized market. Coupled with that I see currently established artists openly defecting from their recording companies to distribute their materials for free online (napster, etc). In every way possible, digital technology empowers us to cut out the expensive and unneccesary middleman when we want to express ourselves. The DMCA is just a feeble attempt to turn back the clock and make it all like it were. Please couldya?

  • by Bonker ( 243350 ) on Wednesday May 02, 2001 @05:53AM (#251783)
    How do lines 20000 through 20025 of say Microsoft Word 2000 express something?

    You might as well ask if pages 50-75 of 'War and Peace' express anything. Sure, there are a few random ideas in those few pages, but nothing concrete. Nothing you can base an ideologcial argument on, but if you read the whole of 'War and Peace', it's an entirely different matter.

    Same thing for MSWord. What's the point, plot and climax, you ask? "Bill beleives that Word is the best, nay *only*, word processing program you'll ever need. It's chock full of features and paperclips to help you through your busy workday and if you don't agree with us, well ALL YOUR WORD PROCESSOR ARE BELONG TO MICROSOFT!!!!"

    Turn that around and apply it to DeCSS. What was young Jon's point when he wrote the code? Perhaps it went something like this:

    "Damn, I wish I could watch DVD's under Linux. This is such a pain in the but because Linux doesn't even understand the filesystem. Because I've got some mad haXXor skeelz, however, I *will* watch my DVD's under Linux, even though I have to circumvent both Linux's inability to read DVDfs and this really crappy layer of encryption that doesn't really do anything."
  • by eXtro ( 258933 ) on Wednesday May 02, 2001 @05:26AM (#251797) Homepage
    I'm trying to grasp code as expression but failing, at least in the general case. For instance I can see how demo coders with a political or moral agenda could use their code to disseminate an idea. This could be extremely powerful, especially with todays population accustomed to flashy video clips and sound bytes. Think of a meme that spreads as rapidly as "All your base are belong to us" but that contains a seed of an idea, enabled by a skilled FLASH programmer.

    A random snippet of code I've got more of a problem with however. How do lines 20000 through 20025 of say Microsoft Word 2000 express something?

    I don't see how you can provide protection for one while squelching the other though. Would every bit of code have to go through legal proceedings to determine if its expressive or functional? Should one of the most powerful rights, free speech, be thrown out with the bathwater because a corporation is worried about profits?

  • by eXtro ( 258933 ) on Wednesday May 02, 2001 @05:17AM (#251798) Homepage
    Fair use can extend beyond making a backup copy. Off the top of my head I can think of:
    • Movie reviews. Sure, Siskel and Ebert (or at least whichever of the two isn't dead) can get permission to play a clip, what about a non-corporate sponsered reviewer?
    • Movie technique critiques. Think of a class that examines the details of film making technique: camera panning, film choice, framing, lighting etc. An accurate representation of a segment of film is required for this in order to develop an understanding of the directors intent.
  • by slaytanic killer ( 264559 ) on Wednesday May 02, 2001 @05:53AM (#251802)
    I agree, and that's the law that should be made. If one is committing a crime with DeCSS, then the penalty should be a bit stiffer. That would be an illegal use of something that was allowed for freedom. But to ban crowbars outright is certainly something that the MPAA will have a hard time living up to.
  • by slaytanic killer ( 264559 ) on Wednesday May 02, 2001 @05:15AM (#251803)
    Do we ban normal crowbars? And if DeCSS is a digital crowbar, is there any cause to ban it too?
  • by nanojath ( 265940 ) on Wednesday May 02, 2001 @05:41AM (#251809) Homepage Journal
    Any computer language is a highly specialized way of representing sequences of logic. The fact that these sequences can be read by a computer is irrelevant - functionally they are no different than a mathematical proof or a syllogism. They are a method of representing thought, and are hence expression. Even though you need mathematical expressions like E=MC(2) to make a nuclear bomb, and even though nearly everyone agrees that the ability of individuals to make nuclear bombs must be restricted, noone is arguing that we must therefore ban the expression E=MC(2) because it is just a functional bit of mathematical code and not "real" expression.
  • by dachshund ( 300733 ) on Wednesday May 02, 2001 @06:19AM (#251812)
    A friend of mine is an organizer of a major independent film festival. One of his jobs has always been to create "clips" tapes of present and past films that are sent out to attendees. In the past, they have sent VHS tapes, and obtained their material from videotapes. Now they are trying to send the material as DVDs, and consequently need to rip the clips from the DVDs themselves.

    This is one of a million examples where 90% quality is simply not enough. Nothing is being done to violate traditional fair-use in this case, but if the MPAA has its way, this sort of application could very well become impossible.

  • by multicsfan ( 311891 ) on Wednesday May 02, 2001 @06:05AM (#251824)
    Would fair use include my copying all my DVD's to hard drive so I can easily play any one I want? This assumes I bought and continue to keep in my possesion the original DVD and I'm just storing the dvd on my hard drive for my convienience. It might make it easier to carry a movie with me when traveling if my laptop had both enough disk space and no dvd drive.

  • by racermd ( 314140 ) on Wednesday May 02, 2001 @06:33AM (#251825)
    IANAL, so take all of this with your requisite grains of salt. That said...

    I followed the AHRA when I was in high school and was disturbed to learn about what methods were used to keep digital copies under control. SCMS (Serial Copy Management System) is basically a flag in the subcode consisting of 2 bits telling the SCMS chip inside of whatever device is being used what generation of copy that the data is. A code of "01" means that it's an original and may be copied, while the recording device changes to code to the newly created copy to a "10". The next time it goes through a copy process, the SCMS chip tries to write a code of "11" and won't work. All streams of data that contain the code of "00" are able to be freely copied to any number of generations, as the SCMS chip won't modify this code. (And all of this is from my hazy memory of the details. The system works this way, but the codes might be changed around...)

    There was major controversy over this at the time. However, it has proven itself to work fairly effectively. It keeps honest people honest and allows (relatively) unlimited copying for personal uses. As long as you retain the data on it's original medium, you can make as many copies as you want from it. Try to make a copy of a copy and you get screwed.

    What this system allows is media-shifting (applicable under the AHRA and the Betamax scenarios) for personal use. Under the AHRA, you can still make custom compilations on digital media to give to your friends. What they have, however, is a digitally uncopyable copy.

    For instance, I love Minidisc (and is a whole other posting for me to go off on). I like making custom compilations of my songs to take with me to work or to use in my car. With the DMCA, I can't do that with any of my movies. And that's the thing that irks me the most. (I know, what language!)

    What I'd like to ask the MPAA the most is why I'm able to listen to my music anywhere in the world, why I'm able to make digital copies of my CDs onto DAT or MD for use in other parts of my life (like my car, for instance), and why they think that I'm only licencing any movie I purchase and watch in my own home. If it weren't for the fact that I know that these media companies (audio, too) are money grubbing fat-cats that want to dig deeper into my wallet, I'd be utterly confused as to why they did it this way. It's decidedly anti-consumer.

    And that's what it should be all about. Where's the representation for us consumers? I write my representatives, but look how well that worked! The consumers are getting screwed. We definitely need a watchdog organization looking out for the consumer's best interest, here.

    Thanks for the rant space, everyone!
  • by pavonis ( 415389 ) on Wednesday May 02, 2001 @05:32AM (#251848)
    Indeed- it is perhaps worth noing that any artist (or for that matter any movie producer, in the context of a review) would be horrified by an inferior-quality version of his work being reviewed or presented in the context of a review! Many a painter, for instance, has been more than a little frustrated by the quality of reporductions in a newspaper or magazine review; and in the context of academic study, universities go to significant expense (screening rooms, astoundingly priced art textbooks, whatever) to present the highest-quality versions they possibly can.
  • by sllort ( 442574 ) on Wednesday May 02, 2001 @06:04AM (#251849) Homepage Journal
    hmmm, let me think.

    $Disney = Money + Mouse;

    It's perl. Is it a protest statement, or is it a device? Can a judge tell me?

    I agree, the dramatic readings and DeCSS as poetry are too long. We need a computer program that you can read as a sound bite, that executes, and still gets the point across. Here's my lame attempt. One up me!

"No matter where you go, there you are..." -- Buckaroo Banzai

Working...