DeCSS Injunction Reversed In CA Case 480
kinesis writes: "For those of you following the California DeCSS case, a court of appeal just ruled in our favor, overturning the injunction imposed by a lower court. The court's opinion is available in DOC and PDF versions.
It's a great read for those who want to really understand the case. The conclusion is nicely summarized with this quote: 'In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.'
" Or you can go straight to the PDF.
Damn (Score:5, Funny)
Cheap (Score:3, Funny)
We have lots of Congressman and Senators paid for.
Maybe we can borrow a President from Microsoft for a while so we don't have to wait for our 2/3rds majority to be paid for.
Re:Cheap (Score:3, Insightful)
We can go back to bashing Fritz and the other representitives from Disney in another article.
Re:Damn (Score:2, Funny)
We accept cash, credit cards, and checks. Please, no CODs.
Lower court judges - $70000 to $80000 depending on moral stance of judge and previous history of payments.
Marilyn Hall Patel - $900000 for a Napster-like copyright dispute. $5500000 to defend against Napster-like copyright dispute
Judge Kaplan - $80000000 if member of MPAA. Subtract $5000000 if dealing with those skript kiddies at 2600.
APPEALS COURT
Our prices for appeals court judges vary widely, but generally can be pinned between 50 million and 60 million dollars due to the judges' high moral fiber, wealth, and influence. It is also more difficult to discreetly bribe an appeals court judge
AMENDMENT TO CONSTITUTION
We price constitutional amendments at a very competitive rate . Our $90 billion Constitutional Package covers bribes to congresscritters, all 50 state legislatures, and for a FREE bonus, a massive advertising campaign blitz that will convince Joe Q. Luser that your Intellectual Property amendment guarantees them lower prices and helps the economy.
Don't delay. Order today!
Re:Damn (Score:3, Interesting)
Yeah, ha ha, but seriously, what if it some economic drive could push the price of our representives higher than is worth paying. Is it worth paying 90,000,000,000 USD for a congressional amendment that will pay that back in a thousand years? Or more simply, why buy a judge for more than the dispute is worth?
Is it possible though to push those costs up in a reliable way, assuming that the human desire for justice and fair play is not always as strong as the human desire for personal enrichment (an assumption I don't think anyone around here is going to question.) First there's simple supply and demand: a judge's ruling (which I standardize on as the simple case) is a one time service. Very limited supply. Only the Supreme Court has a monopoly on rulings, and they can take away anything another judge gives you, which complicates the model a bit. Also note that there is an oportunity cost: a judge can only sell a case once, and the appearance of being bought might affect their ability to sell further rulings.
But what we want is for judges to rule as if the ruling hadn't been sold. Perhaps judges would be willing to sell their privacy, so that we can be sure that none of their personal gain is dishonest, but they make a tidy profit on the side? Hrm.
Pinch me. (Score:3, Funny)
Re:Pinch me. (Score:5, Interesting)
Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA? Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?
Anyone else notice the slashdot.org plug right there in the ruling? That is some awesome free advertising.
By the way, we should note that this case does not appear to have had any impact on the DMCA, but on a CA trade secret law. So we are not out of the woods yet with the federal law.
Re:Pinch me. (Score:4, Informative)
Actually, the court's recognition of source code as expressive speech is a major step in the right direction, if it's upheld by higher courts.
The susequent balance of state (and presumably federal law) against constitutional interests could presumably put an axe in the DMCA's head-- if the code==speech assumption is upheld all the way to the Supreme Court. Don't count on that, of course.
Re:Pinch me. (Score:4, Insightful)
As physical items become (nearly) as close to free(gratis) as information can be now, I fear the effects of existing business being guarenteed a profit despite a change in technical ability and need. In that vain the, FCC owning all the airwaves and dolling them out to a few chosen ones under certain conditions is very much like feudalism. If this end justifies the means (legally destroying time shifting while defending corperate profit) We are setting up the legal tools to legally enforce true feudalism in meatspace.
The legal decisions of the next 10 years can make the next 60 heaven or hell. Near godlike control over the structures that make up all physical matter and physical scarcity needs to distributed among all that do not abuse it. Damn Hollywood for not having vision beyond quarterly reports, and damn us for not fighting them harder.
Respect for creativity and self reliance over profit is esential for invention, self respect and true inovation. Liberty or death.
Re:Pinch me. (Score:4, Interesting)
While I agree with you, I feel the need to at least put in the plug for capitalism.. When you acquire an MBA, econ degree, marketing degree, or any general business degree you are a highly specialized human being. Your focus is to squeeze profit out of a market better than your competitor. If you can't, then you are replaced by the board. If the board can't dictate policy effectively, then the share-holders replace the board. If the share-holders don't choose an appropriate board, then profits linger, P/E ratios drop, and investment firms lower their rating. If the rating drops, the share-price is sure to drop. Thus the investment firms sell stock, and the individual share-owners are dramatically encouraged to replace the board. Furhter, if investment firms that don't react harshly to harsh financial environments won't be invested in by individuals. Assuming Investment firms are mostly collections of lay-people's "retirement" money (401Ks, pensions, individual stocks, etc), then the entire drive to perfect the art of squeezing every last penny is largely propelled by sweet ole mom and pop. Isn't it ironic?
The main advantage to this system is economic efficiency (which has little to do with money). We distribute scarce resources to that which desires it most (or at least is willing to trade the most of another scarce resource). There's very little waste in capitalistic societies. The main sad part is that since you can acquire tradable goods (fiat money) more easily when you already have tradable goods (equity), then the value of a fixed quantity of money to a wealthy person is orders of magnitude less than that of a poor person.. Thus when bidding for a scarce resource, the most needy usually can not compete. But I've never seen a system that avoids this problem without just trading it for other just-as-serious problems.
Given the above, the US constitution is not in the most efficient form (nor could it be without adapting over time). Usually it any modifications to law and or constitutional rights lag behind the currently desired equilibrium (which is usually a compromise which doesn't fully meet anyone's desires, as it should be). But the mechanisms for enforcing these changes are by far not in line with economic principles. Democracy is at least closer than communism to an market-sensative adaptable system. Like the board, we remove the administration when it falls out of favor. But unlike a company, there is no clear direction (as with profit), so it's impossible to gaguge someone's resume' and determine if they stand a chance at better administration.
The general point, however is that we can't blame the MPAA or RIAA for their direction. They are the product of evolution. Anything they'd be replaced with would come to similar decisions. We can only competed with them for legislative efficacy. But like the wealthy and poor competing for a scarse resource, the money favors the large organization in enacting new laws.
The only out I can consider is to define a set of measurements by which a congresman's value can be weighed. How much like "measuring the worth of poety" [dead poet society] this sounds, but this is, indeed in the name of reaching a political equilibrium.
-Michael
Re:Pinch me. (Score:4, Informative)
Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?"
It wasn't dealt with because the issue of whether Johansen did anything wrong was too difficult to decide without more facts, and because the court was able to decide the matter of the preliminary injunction without dealing with Johansen at all. If this case gets to a trial, even after both the trial and appellate courts have pointed out the huge holes in the plaintiff's case, then perhaps the rest of the issues will get hashed out.
I think it's infinitely better that the court ruled on the constitutional issue rather than ducking that issue and resting the decision on Johansen being a minor.
Re:Pinch me. (Score:3, Insightful)
It's all a matter of civil procedure. That is a factual matter that might come into play if this made it to the trial stage. This court proceeded based on the assumption that the DVDCCA would prevail at trial on showing its claim that the EULA was valid. So no court has reached the merits of that issue yet. What this court said was basically that the trade secret act could not bar distribution of speech unless that specific person was contractually obligated to do so (ie had voluntarily waived their First Amendment right by agreeing not to disclose it). They cited the recent Bartnicki v. Vopper case to justify this viewpoint.
In sum, it doesn't matter whether the EULA is valid -- a EULA can't stop 3rd parties from posting code. The court completely ignored Kaplan's opinion (!!!) , an act that speaks volumes through silence, and ruled that source code sitting on a web server is "pure speech".
This is very, very good.
So.... (Score:2, Funny)
Re:So.... (Score:2)
sPh
Re:So.... (Score:2, Funny)
The recording industry is also joining this lawsuit now!!?? Those bastards!
You'd think they'd be satisfied with having run Napster into the ground, but nooooo! Now they have to jump on the DeCSS bandwagon as well, eh?
HEADLINES (Score:4, Funny)
In an unprecedented move, Attorney General John Ashcroft locked up all the Appeals Court judges while waving his arms in the air screaming something about terrorists. In a later statement he made the comment "How could anyone imagine anyone but a terrorist thinking free speech was somehow more important than national security?". Reporters who asked provocotive questions were also taken away for correctional training.
Re:OT: Tagline meaning (Score:3, Funny)
I'm sorry... (Score:2, Interesting)
No, I'm not a lawyer, yes, you can flame me about not caring enough.
I'm just a practical guy who saw the right people going balistic over this.
Let me know when the smoke finally clears.
Re:I'm sorry... (Score:5, Insightful)
However -- look how long it has taken. Two years, I believe. The problem is that large companies and consortiums of companies can run roughshod over individuals with impunity. Sure, it'll be overturned if someone can scrape together enough money or get enough support to go to a group like the EFF, but it takes *years* to do so. In the meanwhile, their business practices continue unabated.
Will right prevail eventually? Kind of, maybe. But the point is that they shouldn't have the nerve to try to forbid people from playing their own DVDs with any software they choose. You buy the DVD, you should have the right to play it and enjoy it anywhere at any time. You're not infringing on their rights by doing so -- but they're infringing on yours by trying to limit what you can and can't do.
People *should* go ballistic when their rights are trampled on. Thank God this guy was willing to fight.
While you have certain rights on paper as a citizen of the United States, if no one stands up for those rights it's the same as not having them at all. Look at what Ashcroft and his cronies are trying to do... until the Terrorist Act makes its way to the Supreme court, it'll be used to abuse the rights of many people -- I guarantee it. People who are not a threat to the country or our safety, just people who are nuisances to large corporations and/or the present administration. I have no doubt that that law will be overturned eventually -- but probably five to six years from now, after doing amazing damage to people who don't deserve it. Someone will challenge it and prevail, others without the money to go through the process of appeals and whatnot will simply have to take their lumps or worse.
If that's not worth getting upset about, I don't know what is.
Re:I'm sorry... (Score:2)
It hasn't even really been tried in court. When it's being used to sentence 6 million criminals to death you can make that analogy, but until then you cheapen the tragedy of the Holocaust by doing it.
Re:I'm sorry... (Score:2, Funny)
If so, he lost the argument.
This just rocks.. (Score:5, Insightful)
computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"
This confirms my theory that there are more sensible people in the world than I previously expected. I just loved the part where they upheld the belief that "computer source code" being an expressive means for the exchange of information among geeks. I mean, that just rocks..
Re: This just rocks... (Score:2, Funny)
System.out.println("This decision Rocks!");
System.out.println("Score one for the good guys!");
Re:Nonsense (Score:3, Insightful)
Re:Nonsense (Score:5, Insightful)
"that's like saying bridges are the preferred method of communication among civil engineers. code is for compilers, text is for people."
Source code *is* text, except in languages like National Instruments' LabView.
Blueprints and engineering drawings, not bridges, are a suitable method of communication between civil engineers. They can be "converted" to bridges by builders reading the blueprints. That does not destroy their value as a medium of communication.
Source code is a way to express an algorithm in a way that it may be *both* understood by humans and converted into executable form.
The court specifically recognized that the corresponding object code would not be a medium of human-human communication, but rather in the nature of a mechanical device.
The quote you made from the decision is in the context of discussions of encryption. Surely, for a complicated encryption algorithm, the clearest, most precise, and most unambiguous expression would be a code-like representation, whether in pseudo-code or a real programming language.
Are you suggesting that bridge designers communicating with bridge builders by text alone would work? Do you think the bridge would at all resemble the true intentions of the designer? Would it even be safe to walk across? I believe we would clearly prefer that communication to take place through accurate drawings.
Likewise, discussions between cryptographers and people implementing encryption systems would almost certainly be most accurate if conducted using code-like constructions. Accurate descriptions of encryption technology are essential to avoid potentially serious errors, such as security flaws. Therefore, communication in source code is far preferable to ordinary text.
Re:Nonsense (Score:4, Interesting)
No.
A natural language like English is, of course, the preferred means of communication for informal discourse. Natural languages, however, are often too ambiguous and verbose to function well when expressing precise algorithms.
Those of you who are programmers, you tell me: which is easier to understand, the DeCSS code in C, or the same code in haiku? (I think you can find the latter off Dr. Felten's homepage at Princeton.) Which is easier to work with?
Taken at its face value and out of context, the court's statement is going to be somewhat ridiculous, yes. However, that does not change the fact that programming languages are as useful for communicating algorithms between people as they are for communicating algorithms from a person to a computer.
Wow (Score:2, Insightful)
Yes, *but* (Score:5, Informative)
If you read the decision, you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright, just that the First Amendment trumps prior restraint in the form of preliminary injunctions in a trade secret case of this kind. The appeals court could still conceivaly come back and approve a final judgement against the distribution of DeCSS, and the court will surely uphold actions against individuals distributing copyrighted DVD materials through benefit of DeCSS.
Which puts matters back into the interesting realm of practical enforcement of copyright on an open Internet.
Re:Yes, *but* (Score:4, Insightful)
Agreed. They explicitly state that there are Constitutional issues with Copyright. However, this is a "Trade Secret" suit, brought under UTSA, and the court held that the First Amendment trumps trade secrets, since there is no constitutional basis for trade secrets (unlike Copyright).
Re:Yes, *but* (Score:2)
If the "source code==expressive speech" argument is upheld by higher courts, the DMCA anti-circumvention clauses get a whole lot weaker. While there are protections for copyright in the constitution, there's no language that backs up something like the DMCA; that is, preventing the publication of uncopyrighted "speech" because it might be used to circumvent something else.
Essentially, if code is expressive speech, then the DMCA cannot stand against a 1st amendment claim.
The problem with cases like this, is that for all the judicial expertise involved, the decision always comes down to some silly issue that could go either way. It's generally an issue that the judges aren't terribly informed about-- what the heck do they know about Source Code?-- and therefore are free to vote any way they like to acheive a desired outcome. If the Supreme Court (assuming they eventually have to hear a DMCA case) decides that code isn't speech, then that's that. Too bad.
Re:Yes, *but* (Score:3, Interesting)
text version (Score:4, Informative)
Its just something to get our hopes up (Score:4, Interesting)
Re:Its just something to get our hopes up (Score:2, Informative)
www.fairtunes.com exists for just this purpose. Go ahead and line up!
Re:Its just something to get our hopes up (Score:4, Interesting)
You also have to pay the people who fronted the money to pay for the production of the album. Hmm... that's often the record companies, isn't it? Yes, they do end up charging more than they really need to, and so do the record stores. HMV will sell a CD for $25CDN that I could pick up at an independent store for $18CDN.
The best method I saw for paying the artists directly was a band I listen to allowing people to pre-order their next CD (which they hadn't even started writing/recording) for double-price ($30 US), with only the promise of having it autographed. A year later, I've got my shiny new CD, plus a free t-shirt, and $5 off other band-related merch. Very nice. Still, not really any less than a record-company-produced album would cost. Hopefully the artists will see more money out of this, though.
Re:Its just something to get our hopes up (Score:2, Informative)
before everyone celebrates too much (Score:4, Redundant)
"We express no opinion as to whether permanent injunctive relief may be obtained
after a full trial on the complaint, as that issue is not before us."
This only prevents the preliminary injunction, it does not prevent a full trial....
Re:before everyone celebrates too much (Score:4, Interesting)
Also, it appears to me that the ruling is quite limited in its focus on speech. It only protects source code, and it only protects "speech", not "conduct". So where is the line that divides speech from conduct? Would distributing the source code of a complete DVD player that includes deCSS along with build scripts and instructions on how to build and use it to play DVDs be considered "speech"? Or would it cross the line from speech about the DVD CCA trade secrets into use of the DVD CCA trade secrets?
Does this ruling mean that the developers of Xine [sourceforge.net] can go ahead and distribute a CSS-enabled DVD input plugin in their next source tarball? That's not at all clear to me...
Thank Goodness, I don't have to worry about ELPs (Score:3, Funny)
Now I can rest easy that when good english language processors come about and all human language is source code we will still have a first amendment.
Besides, it was really taking my little brother a long time to decrypt some of my DVDs with the instructions I told him in English.
Duhhhh....
PDF? (Score:3, Funny)
Aren't we supposed to be boycotting Adobe?
Re:PDF? (Score:4, Informative)
Only when a Microsoft Word file isn't the only alternative. Besides, there are non-Adobe .pdf tools
here (PDFZone) [pdfzone.com], here (PDFPlanet) [planetpdf.com]
, and here (SourceForge) [sourceforge.net].
Re:PDF? (Score:4, Funny)
Re:PDF? (Score:2, Funny)
I could never handle those choose-your-own-boycott books; I'd always read through looking for the good boycott endings, and then backtrack for which story I had to read in order to see that company fail :)
Re:PDF? (Score:2)
My Favorite citation from the Decision: (Score:5, Interesting)
[C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an espressive means for the exchagne of information and ideas about computer programming, we hold that it it protected by the first amendment. (junger v. Daley (6th Cir. 2000)))
This is too cool. As another posted said earlier, pinch me. I hope andrew bunner goes after the DVDCCA in an Anti-SLAPP [sirius.com] (abuse of process) lawsuit if he comes out of this unscathed.
Chris DiBona
Other interesting citations (Score:4, Interesting)
"The "fair use" exception permits copying and use
of a copyrighted work "for purposes such as criticism, comment, news reporting,
teaching . . . , scholarship, or research" under certain circumstances. (17 U.S.C., 107.)
It "offers a means of balancing the exclusive rights of a copyright holder with the
public's interest in dissemination of information affecting areas of universal concern,
such as art, science and industry. Put more graphically, the doctrine distinguishes
between 'a true scholar and a chiseler who infringes a work for personal profit.' "
(Wainwright Sec. v. Wall Street Transcript Corp. (1977) 558 F.2d 91, 94.)
. . . the statutory prohibition on disclosures of trade secrets is of infinite
duration rather than "for limited Times." While the limited period of copyright protection
authorized by the United States Constitution ensures that copyrighted material will
eventually pass into the public domain, thereby serving the public interest by increasing
its availability to the general public, the UTSA bars disclosure of a trade secret for a
potentially infinite period of time, thereby ensuring that the trade secret will never be
disclosed to the general public."
I would think that you can use this citation to argue that copyrights, while supposed to be limited in scope, are now becoming de facto limitless, and thus are not 'for limited times'.
Re:Other interesting citations (Score:4, Interesting)
Re:My Favorite citation from the Decision: (Score:5, Insightful)
Some great precedent (maybe v. DCMA and SSSCA) (Score:3, Interesting)
For the first time in a couple years I'm experiencing a glimmer of hope that the checks and balances in our system of governance may actually wind up protecting my rights -- as a programmer, computer & software user, and free citizen of the US -- from the despicable encroachment currently being realized at the hand of law enforcement agencies and especially private corporate interests.
Of course, after Bush v. Gore [cornell.edu], y'all forgive me if my cynicism WRT to the Supreme Court keeps this glimmer of hope faint indeed.
Re:My Favorite citation from the Decision: (Score:3, Funny)
Shouldn't matter. There are some pretty well obfuscated english texts too. They still get first amendment protection though, regardless of whether most people can figure out what the hell they're saying.
Re:My Favorite citation from the Decision: (Score:3, Interesting)
You must be an advanced Perl programmer - it's always looked like machine code to me.... Personally I prefer Python and coding styles that enhance readability.
True executable computer programs (compiled executables) may be intended primarily for communication with machines, but the primary goal of many programming languages and the source code written in them is human-human communication, with any inefficiencies dealt with by optimization during the translation (compile/link/assemble/etc.) process.
I haven't read the decision yet, but one concern may have been "What is a programming language?"
I'd contend that it's a way to tell a computer how to do something. If you set a precedent that computer languages are not protected speech, what happens when eventually software reaches the point where natural language becomes a viable way to control a computer? The difference between assembly, C, Perl, Python, 4GLs and Star Trek's "Computer: Do XYZ" is just a question of the sophistication of the filters, compilers or interpreters that the commands go through before actions are taken.
I don't envy the court that has to decide whether "Bob, handle my guests" is protected while "Bob, open the front door, greet them, lead Jim and Alice to the living room and ask whether they would like drinks," is not protected (assuming that my house computer is named "Bob") or is protected (assuming that my not-too-bright butler is named "Bob").
Walter Sobczek (Score:2)
dude: Walter, this is not a First Amendment issue...
Perl Code (Score:3, Funny)
# 472-byte qrpff, Keith Winstein and Marc Horowitz
# MPEG 2 PS VOB file -> descrambled output on stdout.
# usage: perl -I
# where k1..k5 are the title key bytes in least to most-significant order
s''$/=\2048;while(){G=29;R=142;if((@a=unqT="C*"
b=map{ord qB8,unqb8,qT,_^$a[--D]}@INC;s/...$/1$&/;Q=unqV,qb
^S*8^S>=8
)+=P+(~F&E))for@a[128..$#a]}print+qT,@a}';s/[D-
Man, this is awesome. (Score:2)
While the harm to the defendent is minor for not posting DeCSS and the harm to the plaintiff for having DeCSS posted is considerable, the cost of abridging the 1st Amendment rights of Bunner outweight the need of the DVDCCA(?) to keep DeCSS off the net.
That source code *is* speech, especially between computer programmers and is a language unto them the way Hebrew is or Russian is...
That if the 1st Amendment cannot be restricted over matters of national security, it can hardly be restricted in a matter of this level...
That copyright law does have an expiration date for it's protections, but that UTSA *does not*, or that the UTSA does not make allowances for fair use... Man, this is good!
Why America Doesn't Suck (Score:5, Interesting)
You know, that old constitution thing you have is pretty cool. I wish we had one.
Re:Why America Doesn't Suck (Score:5, Insightful)
That would be kinda like the town bully organizing a gang, only to have his mom tell him he can't go out on the night they had planned to spray paint the school.
Re:Why America Doesn't Suck (Score:4, Interesting)
Re:Why America Doesn't Suck (Score:3)
Music to my Ears... (Score:3, Interesting)
Junger v. Daley (6th Cir. 2000) 209 F. 3d 481, 484-485
Boasting (Score:5, Insightful)
So essentially, nobody ever boasted that they reverse-engineered the thing, or that they clicked on a license... But simply by saying "CSS sucks" and "the DMCA is a stupid law, I should be allowed to post whatever I want", you can find yourself the defendant in a trial for which the plaintiff has minimal evidence against you?
Those nasty kids. We didn't have any real evidence against them, but they were so disrespectful.
Re:Boasting (Score:2, Funny)
MPAA Lawyer: We'd have gotten total control, too, if it wasn't for you meddling kids!
Rooby-Roo!
Nice conclusion (part of conclusion copied) (Score:5, Interesting)
Conclusion:
Code == Free Speech
Compiled Code != Free Speech
So what else is new? Other than this fact is now recognized by the court?
Re:Nice conclusion (part of conclusion copied) (Score:2)
So what else is new? Other than this fact is now recognized by the court?
Fact no, opinion yes. Source Code is free speech, and SO IS compiled code. It's just a translation to another language. I can translate english to spanish, is the spanish now not free speech. What if I can read object code. Translating free speech from one format to another DOES NOT negate the fact that it is free speech.
Slashdot got a mention (Score:2, Informative)
Finally, Bunner submitted his own declaration. He admitted that he had become aware of DeCSS by "reading and participating in discussions held on a news web site entitled 'slashdot.org.' "
Basicly it's Burnner saying that he had prior knowedlge of DeCSS thanks to us here. So, what is this, the 2en time that
Will this effect (Score:2, Interesting)
Re:Will this effect (Score:2)
Good news, still keeping mirror up just in case (Score:2, Informative)
Still keeping my mirror up at http://cyberstar.nu/ [cyberstar.nu] just in case though (I even got a mail from the MPAA asking me to remove it
- Cyberstar
I like this ruling...very logical (Score:3, Interesting)
Re:I like this ruling...very logical (Score:2)
"In our favor" (Score:5, Interesting)
Of interest is the explanation as to why source code is a valid means of communication and should be given first ammendment protection -- it's simply the most efficient means for programmers to communicate ideas about encryption. Even a much simpler concept, say a regular expression would take much longer to say in words than it would take to just write the damn regexp.
One thing that really annoyed me was DVDCSS's argument that there wasn't any evidence indicating that Bunner would suffer serious consequences if he'd have to stop his disclosure of DeCSS code vs what would happen if it were freely copied everywhere -- irreperable damage to DVDCSS. First, the damage has been done, although I suppose that there cuold be new dvd players coming out with that Xing master key without having paid licensing fees to DVDCSS. Second, and most importantly, being denied the right to free speech is some pretty darn serious stuff to have to live with. You can't put a dollar figure on that, and you shouldn't have to in order to justify the importance of your rights to some corporation.
I'm glad the judge ruled in "our favor".
Re:"In our favor" (Score:2, Interesting)
Re: (Score:2)
Finally! (Score:2)
Thanx to all you involved with this directly!
ttyl
Farrell
This is the best possible circuit for it... (Score:5, Interesting)
I assume that the ruling, if the Supreme Court doesn't hear it, will stand, but that another circuit court may interpret differently, in which case it will eventually go to the Supreme Court. Looks like it's time to donate to the EFF, so that they will have the funds to argue the case at the next level.
Re:This is the best possible circuit for it... (Score:2)
Re:This is the best possible circuit for it... (Score:3, Informative)
Interestingly, the Ninth also handled the Bernstein crypto case, and ruled that source code is speech. Did the judge cite that ruling -- don't recall from the link.
Further interesting fact: the judge who ruled in the Bernstein case the code was speech is the same judge who nailed Napster to the wall (Marilyn C. Patel).
Cherry on top (Score:3, Informative)
Did anyone ever really doubt the 6th district? I mean, aren't those honors from Berkeley, mostly? Seriously, all this chatter and breathing of sighs of relief is a little embarassing. Expect the best from your justice system. And dont be so surprized when you get it. This is still America.
Set top players without a CSS license? (Score:3, Interesting)
I thought it was about the DMCA (Score:2)
Re:I thought it was about the DMCA (Score:5, Interesting)
Not just Trade Secret Law, but California's Trade Secret Law, which is quite different from that of other states.
I think you're correct that the appeals court did not directly rule on the use of the DCMA to suppress free speech, but they implied that even the DCMA must bow to the constitution, since it is not a constitutional amendment in its own right. Free speech wins against all but other constitutional laws, from what I can gather of the decision.
all right (Score:2)
Is the appeals court ticked off? (Score:2, Interesting)
Any lawyers out there? I thought that American courts don't usually award costs. Does this mean that the appellate court was ticked off or is this just normal boiler plate?
Code as Expression (Score:2)
:)
-Puk
Most quoted legal document ... (Score:2)
Looks like this document is full of quotes for us to enjoy here. But for those of us looking to play DVDs on Linux using DeCSS or the information contain therein, this line was particularly reassuring:
Although the social value of DeCSS may be questionable, it is nonetheless pure speech
Cheers,
Toby Haynes
The door is still open... (Score:2, Insightful)
I'm suspicious of WinXP and other versions for that matter. I'm suspicious that even though the SSSCA seems to have been put to bed for the moment that assaults on our systems are yet to be devised.
So far the privacy of your own home is almost intact but this will be an ongoing game.
Encouraged but still paranoid.
The real issue is the trade secret status of DeCSS (Score:5, Insightful)
The real stakes are the loss of the DVDCCA monopoly over permissable player features.
The entire DVD industry, through the DVDCCA, have devised a set of mutual licensing handcuffs that they are all to wear -- DVD player manufacturers may not manufacture DVD players with unencrypted digital outputs. They may not manufacture and sell region-free players. This keeps the ability to make fair use of DVDs out of the hands of consumers.
If the trade secret status of the decryption algorithms is found to be lost, then third parties, not bound by restrictive DVDCCA licenses, may well be free to offer DVD players with such consumer-friendly features as unencrypted digital outputs, no region codes, and the ability to fast-forward over unwanted trailers and FBI "notices", while the entire current DVD player industry will be unable to match those features, due to their contracts with the DVDCCA, without in effect dissolving the entire licensing structure and having to compete in, horrors, an open, unrestricted marketplace.
Those are the real stakes. They have nothing to do with copyright infringement, and everything to do with what may turn out to be a "suicide pact" amongst all DVD hardware manufacturers.
The court offers soothing, reassuring words to the DVDCCA and current player manufacturers:
We express no opinion as to whether permanent injunctive relief may be obtained after a full trial on the complaint, as that issue is not before us.9 We further have no occasion to decide whether damages for Bunner's disclosure would be appropriate in these circumstances. DVDCCA may, of course, bring an action for damages or even injunctive relief against anyone who violates the Act by conduct rather than speech.
"violates the Act by conduct" presumably means to manufacture an unlicensed player, and that's the real reason that the MPAA/DVDCCA is spending millions of dollars suppressing DeCSS.
Re:The real issue is the trade secret status of De (Score:3, Insightful)
I thought the algorithms stopped being "trade secrets" as soon as they were publically know.
Implications of the decision (Score:5, Insightful)
IANAL, but it seems to me that it boils down to the appelate court saying (with a lot of other things):
Source Code is Free Speech. DCMA cannot override the right of free speech, especially if it does not involve the use of slander, libel, or "fighting words".
Therefore, you cannot have a trade secret law, especially one from a state, override the constitutional right to free speech. Ever.
This implies that I can thereby describe WINE as free speech, and MSFT can't sue me for trade secrets, since it's an alternate method for responding to inputs and outputs.
This also implies that DCMA is functionally flawed on a constitutional basis.
This lastly implies that the only way to overturn this is to have the US Supreme Court or some higher court overturn this decision.
Good.
Time to start coding!
Re:Implications of the decision (Score:3, Informative)
In addition, if he violated the terms of a contract (e.g. "click-wrap" license) by reverse engineering the software to obtain any of this information, Xing could potentially sue him on those grounds, but that would end up testing the validity of those types of licenses, and I don't think they're confident they'd win.
So basically, this was just the court saying, "You can't forbid him from posting this just because he's discussing a trade secret." He can still bring problems down on himself via other avenues if he decides to continue doing so.
M$ move (Score:3, Funny)
1) "stop what?"
2) "it is too tightly integrated w/ the OS"
3) "we need to innovate"
4) "OK, we'll change the name of the program"
The real villian is still DMCA (Score:3, Insightful)
The real obstacle ahead is the DMCA, which gives legislative weight to EULAs. In this case they weren't challenging the DMCA. The court sidestepped talking about the DMCA issue by claiming that they were not going to rule on whether Jon Johannsen's reverse engineering in Norway was "proper". But that's the real problem here: we are still being denied our "fair use" of software, and it's not even clear whether people in countries with less restrictive laws can exercise those rights for us.
It doesn't look good in this area to me. I doubt the DMCA will be overturned since the issue here is not "free spech" vs "trade secrets", but "IP rights" vs "fair use". IP rights are guaranteed in the constitution and its not clear that "fair use" is. The best we can hope for is that some court will rule that the constitution both guarantees those IP rights but also limits those as well (a la "fair use") and thus EULAs can't impose Draconian rules on how to use software.
Good ruling: Trade Secret vs Copyright Protection (Score:3, Informative)
What was most interesting was the distinction made between copyrighted works and trade secrets.
Since copyrighted works have a "fair use" policy, it is clear why the DVDCCA attacked under the premise of a "Trade secret" violation. However, the strategy backfired. severely:
My favorite quote (2nd hand source noted) was this:
"'If a threat to national security was insufficient to warrant a prior restraint in New York Times Co. v. United States, the threat to plaintiff's copyrights and trade secrets is woefully inadequate.' (Religious Technology Center v. Lerma (E.D.Va. 1995) 897 F.Supp. 260, 263.)"
Ouch, indeed! This may mean the eventual demise of the California Trade Secrets Act, as its scope is to far-reaching.
What was of interest, however, is that there was no discussion of the DMCA, which may have aided the cause of the DVDCCA. Perhaps the DCDCCA did not want to use that trump card, for fear that their case may rise to a federal court, and bring the DMCA under scrutiny.
Why is that interesting? The DVDCCA must have felt that their strongest case did not lie in protection under the DMCA
(chapter 12, section 1201, subsection b), aware of the (obvious) orthogonality of the DMCA vs Frist Amendment, but rather in trying to re-address the issue under the pretenses of a trade secret.
Oh, BTW, here is that bit from the DMCA to which I referred:
"ADDITIONAL VIOLATIONS.
(1) No person shall manufac-ture, import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof,..."
Of couse, IANAL (but I play one on slashdot!).
-D
Semi-useless decision (Score:3, Insightful)
Certainly, this is a victory for the open source crowd. The idea that source code is speech is so natural to us as to be common sense. Having that view upheld by the court is indeed a triumph of law.
However, I'm afraid I have to put a damper on the fun. The court ruled that source code is speech; compiled executables received no such protection. As such, posession of the DeCSS source code is legal, but use or posession of binaries, or even compilation of source (which would produce a binary) is not legal. "You can have it, but you can't use it."
As a practical matter ( WARNING! I am not a lawyer. This is not legal advice! If you try this don't say I told you it was OK! If ever there was a time for the BLINK tag, it's this disclaimer...), since you can posess the source code, there is nothing to realistically stop you from using the binaries. In theory, when the system works right, you cannot be searched without a warrant, which requires probable cause to obtain. If you give the feds probable cause, you deserve what you get, but if you keep your mouth shut and use the software quitely in your home, nobody should be able to get a warrant, and you should not be subject to prosecution (under the rule of "it's only illegal if you get caught"). This would also rule out binary distribution--draws attention to yourself. ( Another BLINK disclaimer: I am not advocating breaking any law. I am merely offering my uninformed interpretation of the legal system. ) The DMCA has not been overturned here, it has just been found not to apply to source code. And for those who are thinking what I'm thinking, interpreted languages aren't a back door. You may be able to posess the Perl version of DeCSS, which is executed from source (for all practical purposes), but execution would be circumvention, and the DMCA says "no" to that.
Good points from the case:
Bad points:
Brief summary, in my own words: you can have it, but you can't use it.
Re:Hip Hip Horay! (Score:5, Informative)
No, you cannot.
This reversed the preliminary injunction only. That means that DeCSS can be distributed in source code form. If you read the PDF carefully (hint, hint) the appeals court says that, indeed, the trial court might decide to assess financial penalties for the improper disclosure, if any is found to exist. The case is still headed to trial--just without the odious preliminary injunction.
The other posters who pointed out how bad a ruling the PI was are right; it was just a matter of time before someone with judicial authority understood the "if it can be put on a T-shirt, it's speech" argument.
There are still a lot of scary, possible outcomes relating to reverse-engineering, jurisdictions which govern license agreements, and other issues. We're NOT out of the woods on this one yet, folks.
Re:Hip Hip Horay! (Score:2, Informative)
Re:Hip Hip Horay! (and "Facts") (Score:2, Interesting)
Well, that's a nice thought... Here is one part that intrigued me (under "Facts"):
CSS is primarily composed of algorithms and 400 "master keys." Every CSS encrypted DVD contains all 400 master keys, one of which is
the trade secret at issue in this case.
I thought that the 400 keys were used to encrypt the movie decryption key, and that the player in question would use its "master key" to decrypt the session key from those 400 on the disk.
In other words, I believe that the "Facts" are wrong. The master keys are NOT on the DVD, just the session key(s) encrypted by the master keys.
If a court ruling starts out with incorrect "Facts", how strong and binding can it be?
yes -- sorta (Score:3, Informative)
The order granting a preliminary injunction is reversed. Defendant Andrew Bunner shall recover his appellate costs.
Of course, that only covers his appellate costs, but it's at least something.
Re:One possible problem... (Score:3, Informative)
This is a good example of "dicta", meaning a comment on an issue that is not before the court (at least this court didn't think it was before it -- I agree it may have actually been wrong about that).
Of course, it's difficult to understand how DeCSS could disclose any secrets if it's a meaningless string of 1's and 0's with no "conveyed ideas". What does that say about copyrightability of binary software, let alone the DVD movies, which are also 1's and 0's. Of course, DeCSS was created by somebody extracting the ideas from just such a compiled object code, so perhaps if the Court had been briefed on this subject it's dicta would be different.
Kaplan heard extensive expert testimony on that very point. The one thing Kaplan actually did buy off on is that the journey from human thought to speech to source code to object code is a continuum.
DeCSS is not source code, but rather a precompiled Windows executable!
Many people have distributed just the executable, but I'm baffled to hear you suggest that there is no source code. There is, it's in C, it's widely available and it's under the GPL no less.
Many people predicted early on that the C source code would be made legal, while the binary would not be. Of course, DeCSS is completely irrelevenet now. libdvd, drip and their peers are much more robust.
Re:One possible problem... (Score:3)
?!?
He did release source code to DeCSS. What do you think everyone was mirroring?
Re:Look out, Taco. (Score:5, Insightful)
Dur-hey.
This is because those of us who actually understand these machines have realized their economic implications, and that they make copyrights obsolete.
Computers are designed to copy things. Indeed, computers as we understand them today would be useless if they lacked the ability to copy data and move it around. What the Feudal Intellectual Property Lords are trying to do is tell you, down to the smallest detail, what you can and can't make copies of, and what you can and can't do with those copies.
Consider the program Cthugha [afn.org], which is an audio visualization program. It takes the digital representation of the music on CD and turns it into a light and color show. The IP Lords assert that, unless you have been granted explicit permission by them to do something with "their" music, you should be held criminally accountable. They have never granted explicit permission for you to run "their" music through a color organ. Hence, copyright violation.
Further, since the output of Cthugha is directly related to the musical input, the output could be construed as a derivative work (since there is no new "creative material", only a purely mechanical translation from audio space to visual space). Absent a license, derivative works are expressly prohibited by copyright law. Hence, using Cthugha is a copyright violation; and Cthugha could be held as a device whose sole purpose is to violate copyrights, and would be banned. (And after all, why should Cthugha's authors [afn.org] profit even reputationally from a color organ that would be useless without "their" music, when the major labels should be able to make money by selling you one?)
This is how adherents to current IP law think. This is not reasonable. This is not forward-thinking. This is not socially redeeming in any way. This is stupid. It is reductio ad absurdum, except that it is being taken seriously. On the contrary, it merits nothing but ridicule.
That's why you're seeing so little regard for, "traditional IP laws and rights." It's because they don't merit respect. The era of ubiquitous and zero-cost manufacturing, as heralded by the computer, makes them irrelevant and obsolete.
Please note extremely carefully: I am not saying artisans and inventors should not be justly compensated for their creative works. But the "traditional" laws we have in place for doing this no longer have any realistic bearing on the real world, since the machines themselves defy the fundamental assumptions made by the law. The whole system needs to be scrapped and re-designed anew.
Schwab