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Elcomsoft Case Will Proceed 227

Posted by michael from the do-not-pass-go-do-not-collect-$200 dept.
An Anonymous Coward writes "Reuters, via the NY Times (free registration required) reports that Elcomsoft's final motions to dismiss were denied. Apparently code *is* protected speech, but... not protected from the DMCA. But most interesting to me was this part: 'The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,' the judge wrote in a 35-page opinion. 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.' The EFF has the whole scoop as usual." There's a Wired story about the decision, and the judge's order is available.
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Elcomsoft Case Will Proceed More

Elcomsoft Case Will Proceed

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  • One thing I don't understand about this case is the fact that Elcomsoft is based in Russia. What gives the US the authority to prosecute a foreign company under US law?
    • I guess it was because they were selling the software in the United States.
      • I guess it was because they were selling the software in the United States.

        Was Sklyarov? Did he personally sell the software? No. It was the company he worked for. When France made M$ pay a few million francs, I doubt the idea of arresting whatever Microsoft programmer happened to be at hand crossed their minds.

    • For one they do business here in the U.S. which makes them liable to comply with all pertinet U.S. Laws and Regulations. This is nothing new - U.S. company's are also held by the laws of foreign governments when they do business there. The classic example I can think of is a few years ago (1998?) compuserve was forced by the German government to filter out some types of websites (nazi, some porn, etc) that it deemed harmful. Now, obviously, that would be in direct conflict with the U.S. 1st ammendment but it was on German soil which means the German government can do whatever they want to a U.S. company and make them obey whatever laws. You can substitute whatever company/country into that situation but the basic premise is the same.

      It is also much like the fact that you must, as a U.S. citizen traveling/living/studying/working abroad, obey the laws of the country that you staying in. Remember 5 or so years back when those 2 american teenagers where flogged in Singapore (truly a happy place to live...) for grafiti and people raised such an uproar? Well the U.S. government didn't do anything - it was quite legal and proper for Singapore to enforce it laws upon them.
      • Well the U.S. government didn't do anything - it was quite legal and proper for Singapore to enforce it laws upon them.

        Clinton talked and talked and talked to Singapore's government and convinced them to reduce the punishment from eight lashes with the cane to four. This I clearly remember. Although you're right -- Singapore had every right to enforce its laws, and probably should have given them all eight lashes. What I don't understand is why (as in the Singapore case) the US doesn't like other countries enforcing their laws on US citizens while (as in the Sklyarov/Elcomsoft case) it is so zealous about enforcing its own laws on citizens/corporations from other countries.
        • I vaguely remeber but the point is it was nothing more than talk, nor would it ever be anything more than talk.. maybe a few vague threats about foreign aid or something but the general point that clinton probably made was just to do this to be nice and show a good image to the American people so they wouldn't stop buying products, doing business, etc.

          What is clear is that the U.S. would never have done anything *real* to stop him from getting punishment. They would only attempt to talk the punishment down.
        • Singapore had every right to enforce its laws, and probably should have given them all eight lashes. What I don't understand is why (as in the Singapore case) the US doesn't like other countries enforcing their laws on US citizens while (as in the Sklyarov/Elcomsoft case) it is so zealous about enforcing its own laws on citizens/corporations from other countries.

          Basically appears to be that the US likes to consider itself superior and look down on other nations. Rather than seeing them as peers.
          Also Sklyarov is not Elcomsoft. Whilst there might be a case against, the actions taken against Sklyarov basically amount to kidnapping.

    • Re:US Laws Apply to Non-US Companies? (Score:4, Informative)

      by Seth Finkelstein ( 90154 ) on Thursday May 09, 2002 @01:22AM (#3489053) Homepage Journal
      The jurisdiction issue was ruled on http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020327 _dismiss_deny_order.html [eff.org]

      On March 4, 2002, the court heard defendant Elcom Ltd.'s motion to dismiss the indictment for lack of subject matter jurisdiction. Having considered the papers submitted by the parties and the arguments made at the hearing on the motion, defendant's motion is denied.

      The court need not reach the issue of whether the Digital Millennium Copyright Act has extraterritorial application because the trafficking conduct for which defendants have been charged occurred in the United States. The conduct which underlies the indictment includes Elcomsoft's offering its AEBPR program for sale over the internet, from a computer server physically located in the United States. Purchasers obtained copies of the program in the United States. A copy of the program was sold to a purchaser in California. Payments were directed to, and received by, an entity in the United States.

      There is sufficient conduct occurring within the United States for there to be subject matter jurisdiction over this matter on a territorial basis.

      Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

    • Clarity... (Score:2, Insightful)

      by Anonymous Coward
      Is what is required with this.

      If elcomsoft has a registered business entity in the USA, it can be attacked.

      If they do not have such an entity, then it is thier distributor who has been importing and trafiking in illegal, DCMA violating software. The Distributor hosted it on its server, took money for it and comitted the crimes.

      If the latter is the case, all Elcomsoft has to do is stay in Russia and no one can touch them.

      This should be a serious lesson for all commercial entities that sell or want to sell software to US Persons:

      Use external servers and payment services to sell your software

      do not incorporate in the USA

      do not allow your staff to travel to the USA, for any reason.

      In this way, you can sell your software to Americans, and remain insulated from the American state.

    • One thing I don't understand about this case is the fact that Elcomsoft is based in Russia. What gives the US the authority to prosecute a foreign company under US law?

      The US has a very long history of simply ignoring the concept of something outside their borders being outside of the jurisdiction on any US court. About the only notable exception is where US people and corporations stand accused of violating human rights.
  • There is no recognized First Amendment right to Fair Use. Will this judge be willing to be the one to set the precedent? Slashdot devotees wait with bated breath.

  • Foes List (Score:1, Informative)

    by CmdrTaco (editor) ( 564483 )
    On the same day, in a separate case, U.S. District Judge Garrett Brown dismissed a case against the Recording Industry Association of America, saying that the association had not stifled academic research when it told Ed Felten, a Princeton professor, that his research into a music-encryption scheme violated the DMCA.

    The government should have a friends/foes list like the one used in slashdot. Garrett Brown would surely be a welcome addition to my foes list.

  • struggling a little harder (Score:5, Insightful)

    by Alien54 ( 180860 ) on Thursday May 09, 2002 @01:13AM (#3489026) Journal
    <sarcasm>

    Gagging a person doesn't violate their free speech.

    After all, they only have to struggle a little harder to express themselves

    </sarcasm>

    Where do they get these judges?

  • Dear Judge (Score:5, Insightful)

    by JoeShmoe ( 90109 ) <askjoeshmoe@hotmail.com> on Thursday May 09, 2002 @01:21AM (#3489050)
    Here's an analogy you may find interesting:

    "The DMCA (Dealer Mechanic Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their vehicle (because it states that you can only seek repairs or purchase parts from the dealer where you purchased your car),' the judge wrote in a 35-page opinion. 'The fair user may find it more inconvenient to engage in certain fair uses with regard to their modern vehicles, but nevertheless, fair use is still available, for a price."

    or...

    "The BMCA (Book Maker Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their books (because it states that you can only open the cover of the book using a special decoder tool that must be registered and periodically renewed by the book publisher),' the judge wrote in a 35-page opinion. 'The fair user may find it more burdernsome to engage in certain fair uses with regard to their book collection, but nevertheless, fair use is still available, as long as the book publisher remains in business."

    When as these idiot judges going to learn? Either we have a first sale doctrine...or we don't. Why do such backward-thinking judges somehow decide that just because we are selling very long numbers instead of books and cars that putting rules and restrictions on ANYTHING AS PART OF A SALE is effectively doing away with this longstanding legal precident?

    The day will come when matter can be easily replicated and all book publishers and car makers are going to be able to see are blueprints, designs, and other electronic information. All these companies are doing is ensuring that people turn to back alley and underground channels. But I understand their Chicken Little approach to intellectual property and the back-ass-wards way they follow it.

    What I don't understand is judges...who are put in our system of government to provide a check and balance to stupid laws...basically deciding that a small risk to corporate profits outweighs a society-wide consequence to freedom of access to information. WHO IS PAYING THESE PEOPLE OFF?

    - JoeShmoe

    .
    • Along this line, every digital program is a number in base 2. If one were to write a program A that outputs the number for Windows XP, and then write a program B that outputs the number for A, would program B be legal?

      Program B does nothing but output a number. The number it outputs is not copyrighted.

      What if you wrote a program that produced the number for the Windows XP binary minus seven? Would a program that adds seven then be copyrighted by microsoft?

      Similarly,does a software binary copyright also cover the infinite number of programs that output that binary? Also, does copyright cover stuff like program B giving control over the infinite number of programs, that can be produced by the infinite number of programs, that can be produced by an infinite number of programs....

      If the government actualy accepts code as speach, then software companies are screwed. They would have to outlaw every number, because it could be used as a key to generate the source code for Windows XP.
      • Just thought of another one.
        By patenting Windows XP does Microsoft control all bitstrings that have the same length as Windows XP? You could generate a random string of bits and XOR it with the Windows XP binary. The resulting XORed string could be any string the same length as the XP binary. (by XORing the string again with the same random string you get Windows XP back) There are less atoms in the universe than the number 2^n where n is the length of the XP binary.

      • Re:because weare selling very long numbers... (Score:5, Insightful)

        by JoeShmoe ( 90109 ) <askjoeshmoe@hotmail.com> on Thursday May 09, 2002 @02:19AM (#3489195)


        This is a silly argument. If the process is reversable you have not fundamentally altered it, merely packaged it. Warez pirates don't get off scott free because they are trading ZIP files that just happen to uncompess to WinXP.

        Now, if the process isn't reversable then you have destroyed the item in question so arguably there is no copyright violation in the first place.

        It's not the individual steps that are the concern. It's the process. Your program B wouldn't be illegal unless the only purpose of program B was to be used in concert with number A to product free copies of Window XP.

        A book is just a really long word printed on paper. A car is just a really complicated sculpture made from metal&plastic.

        My point is that we need for people to separate CONTENT from DISTRIBUTION and stop thinking that objects containing both are somehow inseparable. A electronic book is the same as a book except the electronic book can be duplicated replicated and distributed far more easily than the physical book. But in the future where maybe we have robots that could flip through a book recording each page then manufacture a duplicate from raw materials...well then, suddenly its more apparant that the part of the "book" that actually has value is the word not the package and not the way it gets from point A to point B.

        Even if computer code is just a really big number...it still takes a person focusing creative energy for a period of time to produce that number...or rather, find out why that number is so special (what exactly it does). But beyond the initial credit and compensation...it is flat out stupid to assign rights to the number itself. I won't purchase eBooks because they aren't going to sell me their number. They want to sell me part of it and then add a whole long list of chores I must complete to get the rest.

        It's as if an artist sold you a picture in a black box and told you to hang the black box over your mantle and if you ever wanted to see the picture, call him and he'll remotely open the box. Who would be stupid enough to buy something like this? Yet if tomorrow all artists decided to do it, would we have any way to stop them? No, we wouldn't and that's when the courts are supposed to step in and say "No." They did it for book contracts back in the 1970's and established the first-sale doctrine as law.

        And now idiots like this judge have decided to throw that out and go back to allowing manufactures of PACKAGING and DISTRIBUTION to made decisions regarding CONTENT.

        - JoeShmoe

        .
        • How about these two methods:

          Method 1:
          Program 1 outputs all integers in seqence as a continuous bit string.

          Program 2 selects from the output of program 1 according to a true false match against the complement of another number.

          Program 3 generates a second number for input to program 2 formed by removing either the odd or even bits from another file.

          Feed a copyright work to program 3 twice, once for odd bits, once for even bits.

          Run two copies of program 2 (in two threads), once with each input against the output of program 1.

          Program 4 creates a file by interleaving the bits of two other files.

          This has the single dubious point that there is a reference to the copyrighted program.

          Method 2:
          This improves upon method 1.
          Program 1 outputs all integers in seqence as a continuous bit string.

          Step 1: Run Program 1, caching the results against future selection.

          Step 2: While program 1 is working, construct a suite of tests that must be passed in order for a program to be accepted.

          Step 3: Run each of the outputs of program 1 against each of the test suites composed in step 2.

          Continually run all three steps in parallel.

          If the tests are correctly selected, then eventually an output will be produced which satisfies all of the specified tests in the same way that any other selected program would.

          (N.B.: Except for the nature of the production of candidates, this is similar to many other endeavors, such as the Wine project.)

          Here, however, the question is: Is program 1 illegal? It is guaranteed to eventually produce bit strings that, if properly interpreted, are identical to all copyrighted works. (It may not be very efficient at the job, but it would certainly eventually output ALL copyrighted works.)

          Could the output of program one be copyrighted? Could arbitrary selections from the output of program one be copyrighted? Could selected selections from the output of program one be copyrighted?

          But these are all just numbers. Until they are interpreted.

          • You've changed nothing. Again, I repeat myself.

            If Program 1's only purpose is to contribute towards producing pirated copies of X then yes it's illegal. If Program 1 also happens to produce a bitchin recipe for chicken gumbo then you might be able to get away with it...however as soon as someone posted a message saying "if you take program 1 and do such-and-such you get a free copy of X" then guess what, you'll be asked to modify Program 1 so that it maintains its primary purpose (outputting recipies) without its correlating illegal purpose (outputting X).

            For the last time, it's not the parts, it's the process.

            - JoeShmoe

            .
            • But program 1's purpose is to output all of the integers in sequence. I.e., to implement the sucessor function from, say, "Peano Axioms and 1st order logic" (et. al) in an iterative manner.

              The gumbo receipes that would, of course, exist there are purely an artifact of interpretation. And you could assign the same receipe to different integers depending upon your interpretation. Likewise for any interpretation as machine code. (Of course, some interpretations are more straightforward than others.)

              But it will map to anything that maps to the integers, or at least to a finite subset of them. This includes the words in a dictionary, the names in a phone book, etc. And the successor function predates copyright law. It probably predates the English language.

              I suspect that the copyright would have to be found to lodge in the selection process, or possibly the interpretation process. And note that there's no guarantee that the number that is selected under interpretation 1 will have any resemplence to the number selected under interpretation 2. (To make this concrete, imgine that interpretation 1 models the Intel 686 and interpretation 2 models the Motorola, O, 68000. But remember that these are merely choices made to ease the visualization process.)

  • EFF, Donate Now (Score:5, Insightful)

    by CFN ( 114345 ) on Thursday May 09, 2002 @01:25AM (#3489063)
    Hey. Just a couple of days I donated $20 to the EFF (grad student budget constraints).

    I'll tell you something, laws can be bought ("donations" to lesiglators), and court cases can be bought (better lawyers cost more). It seems like big business, etc., always win these things, but the reason is because they have the money to do the buying.

    If us, the regular people, those who want to own what we pay for, who want the right to watch our DVDs with the player we choose, to save our e-books on to a different medium, to uninstall parts of the operating system that we don't want, to take apart our :CueCats, all donated $20 to the EFF, or other organizations, suddenly we might be able to buy some justice as well.

    So forego a couple of extra beers, a couple of rounds of pool, StarWars tickets, etc. and dontate a couple of bucks. Maybe then we can see a difference.

    Just an idea.
    • Here, here! People complain a lot, but they never do anything about it. That's a lot of wasted breath if you're not going to put your money where your mouth is.

      Sadly, I'm a student as well... but I won't let that stop me : )
    • What are you fighting for? So long as the EFF remains a reactionary organization it will be considered as marginal as the Sea Shepherds.

      Proactive groups make fewer headlines but more impact.

    • Re:EFF, Donate Now (Score:4, Insightful)

      by josh crawley ( 537561 ) on Thursday May 09, 2002 @01:54AM (#3489132)
      I admit, that supporting EFF is a noble cause. But it is wasted money. Here's why:

      They challenge all these unconstitutional/bad laws. Most of what the EFF says is thrown away, cause they're a bunch of techno-nerds. They're not paying those nice judges or congressmen anything.. Ask yourself: What has the EFF done for ME??? Asking the similar question about the NRA is a bit different. They have actually (payed off senators...) got bills destroyed/never even considered.

      How you can help: if you're a programmer, make those tools corporations dont like. Or if you can make a program vicious, then do it. However, send out source too. Once deCss hit the fan, the companies could never take it back. It's not that easy to un-disseminate a GPL (or open source) program on the net.

      Example: Virtualdub. Mr. Lee, in 1.3c put in ASF decryption support. It worked quite well, but ol' stogey MS didn't like it. He finally took it out, but wait!! He had full source downloadable (regardless of license). Now, thanks to him, we had a basis to build ASF decryptors and fixers.

      • Re:EFF, Donate Now (Score:3, Insightful)

        by Reziac ( 43301 )
        As I've said here several times before, the EFF and all its kin will NEVER be effective in Washington until they figure out that the only way to significantly influence the political process is to hire experienced lobbyists, who know all the right buttons to push -- it's their profession, they do lobbying for a living. You wouldn't hire a lobbyist to write geeky code, would you? So why would you expect geeky coders to know a lobbyist's job?

        And Avery Lee is one sharp cookie all around. :)

    • Re:EFF, Donate Now (Score:3, Informative)

      by Enonu ( 129798 )
      A quick URL to the donation page: here [eff.org].
    • Does it bring much to donate to the EFF, in a country
      where those with the most $$$ can buy the legal system?

      Usually I am not a radical (and rather right wing for that matter) but I begin the think that the only thing that can help is civil disobedience (for a start). You cannot rely to use the legal system (like supporting the EFF for lawyers) that is corrupt, you can only ignore such a legal system and ignore corrupt laws.
    • A more effective financial act would be to stop buying those DVDs you want to watch under Linux -- your $20 donation to the EFF evaporates when your credit card gets charged this fall for your gee-whiz extra-deluxe wonder-wow "Fellowship of the Ring" special edition collector's cut.

    • I agree completely up to the 'star wars tickets' part. That's crossing the line, man... give up your star wars tickets for your freedom? What are you, some sort of patriot? Sheesh.

    • Although I'm sure that donating to the EFF helps in some small way, doesn't it seem sad and pathetic that such a thing is necessary? If you can buy it, its not "Justice". For a really amazing description of Justice, check out: The Prosperity of Humankind [bahai.org]. It's got a bit of a religious/spiritual perspective, but it actually goes through a very logical process and produces one of the best working definitions of Justice I have ever seen.

  • His Reasoning is Bogus (Score:5, Interesting)

    by geoffsmith ( 161376 ) on Thursday May 09, 2002 @01:35AM (#3489094) Homepage
    The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.

    I'm sick of that argument. It's just not valid, if you make something "difficult" enough, people won't do it. And if people won't do it, it's equivalent to banning it. That it could be done "in theory" or by "people who are willing to put in extra effort" is irrelevant.

    In fact, all laws work on a relative disincentive principle ... most people would rather avoid breaking the law than possibly landing in jail. In this case, most people would rather not exercise the full extent of their fair use than put in the effort to sidestep the DMCA. There is no difference, the DMCA "silencing effect" is an affront to free speech. I think the fact that a person intelligent enough to become a judge used this argument shows he has ulterior motives.

    Websurfing done right! StumbleUpon [stumbleupon.com]
    • One thing I don't understand about this case is the fact that Elcomsoft is based in Russia. What I want to know is what gives the US the authority to prosecute a foreign company under US law?
      • The fact they were knowingly selling into the US? Why does the EU have the right to impose restrictions on Microsoft?

        Not that I think this case is right, but if you actively sell something into a state (nation or otherwise), you have to accept anything relating to the sale to be governed by its rules.
    • The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.

      IANAL but that statement sounds to me like pretty explicit permission do defeat devices/"protections" that impede fair use BY ANY MEANS NECESSARY so long as you are excercising your fair use rights. Difficult is most definately NOT impossible. And since there is no banning in place, there is no legal impossiblity, and most certainly no technical one, and there never will be.

      Now if I can just get an eBook converted to speech mp3 and drop it on the new Sony Net MD Player/Recorder. Heh.
    • But e-books are no harder to use fairly than their paperback analogue. Although RMS might want there to be, there's no requirement that paperback manufacturers distribute latex versions of their books on floppy. You have to use scanners and OCR software to exert your right to read the book on your laptop. E-book manufacturers are merely trying to receive the same protections.
      • You have to use scanners and OCR software to exert your right to read the book on your laptop

        And yet, oddly enough, there are quite a number of large US-based companies selling those items without fear of being arrested for it. Tools to copy books are legal. Tools to copy ebooks are illegal. Anyone else see the problem here?

        E-book manufacturers are merely trying to receive the same protections.

        How do they achieve "the same protections" by prosecuting people for doing what you describe as the equivalent of scanning and OCRing a book? Sounds to me like they are going way above and beyond the level of protection afforded by dead trees.

        • And yet, oddly enough, there are quite a number of large US-based companies selling those items without fear of being arrested for it. Tools to copy books are legal. Tools to copy ebooks are illegal. Anyone else see the problem here?

          You are a troll.

          How do they achieve "the same protections" by prosecuting people for doing what you describe as the equivalent of scanning and OCRing a book?

          You missed my point. You can still scan and OCR an e-book without breaking the law. Just put your handheld scanner up to the screen. What you can't do is create a device which allows consumers to bypass technological measures to instantly make perfect digital copies. This law puts the two media at an equal playing field.

          • You are a troll.

            And you think that making it illegal to be a potential criminal is a good thing. That punishing people despite their not having committed a crime is not only acceptable, but quite logical. You've said so here [slashdot.org]. "I just don't see the DMCA as inane. I think it makes sense."

            You yourself said that scanners and OCR had to be used to make dead tree text freely accesible on a computer. Replace "scanners and OCR" with "Advanced Ebook Processor" and "dead tree" with "Adobe's ebook" and you have the situation Elcomsoft is in right now. Why isn't Memorex, the manufacturer of the scanner sitting right next to me (which came with some handy OCR software), in this bind?

            You can still scan and OCR an e-book without breaking the law. Just put your handheld scanner up to the screen. What you can't do is create a device which allows consumers to bypass technological measures to instantly make perfect digital copies

            Oh, but nearly perfect copies which could then be distributed flawlessly would be ok? I guess since MP3 isn't quite CD quality the RIAA should be giving its blessing to ripping and trading programs everywhere? After all, they're not perfect copies and you certainly can't get them instantly. Would a process that took 10 minutes and was only 99% perfect be ok for reading ebooks? How about an hour and 95%? A day and 90%? At what point does it become acceptable to write a program to copy this stuff? Would a perfect OCR program constitute a circumvention device to you? Never mind the unbelievable usefulness such an invention would have, it could read copy-protected books! Oh no, we have to ban it at once!

            Face it; trying to keep people from copying data that is in their hands or on their computers is futile. Trying to do it with a piece of legislation is futile and stupid.

            • And you think that making it illegal to be a potential criminal is a good thing.

              The insanity of that statement is self-evident.

              Oh, but nearly perfect copies which could then be distributed flawlessly would be ok?

              No, fair use copies are OK, and devices that aren't primarily designed to circumvent technological measures which effectively control access to copyrighted works are OK.

              Face it; trying to keep people from copying data that is in their hands or on their computers is futile. Trying to do it with a piece of legislation is futile and stupid.

              So all copyright law is stupid. I guess you release everything you own into the public domain?

              • And you think that making it illegal to be a potential criminal is a good thing.
                The insanity of that statement is self-evident.

                You're the one who said the DMCA, which does exactly that, is a good thing. You think the DMCA makes sense. The DMCA, among other things, makes it illegal to be a potential criminal; or rather, to tell people how to be potential criminals, which is just as bad. Therefore, you think that any information regarding committing crimes, especially when embodied in software, should be banned. Explain to me what part of this reasoning is 'insanity'. Try to do so without resorting to insults.

                No, fair use copies are OK, and devices that aren't primarily designed to circumvent technological measures which effectively control access to copyrighted works are OK.

                The whole 'primarily designed for' argument is crap. If DeCSS or the ebook crack had been bundled along with a large collection of legit features (thus making the whole program 'not primarily designed' for that purpose) nothing would have changed.

                Besides, listen to your own argument: If I want to fairly use this IP that I bought a license to use, I'm not allowed to seek outside assistance in doing so? Get real.

                So all copyright law is stupid.

                Never said that. I said trying to keep me from copying is stupid. Copyright is, or at any rate should be, keeping me making money off of, or claiming as my own, someone else's work. Doing so moves the activity much further into public view and is far more easily enforced. Still nowhere near perfect, but trying to keep tabs on what every singe person does on their home PC is, as I said, an exercise in futility.

                If you pass a law that you know you can't enforce and will only make things worse by trying, why do you bother? Principle must eventually give way to practicality.

                I guess you release everything you own into the public domain?

                For now we'll ignore the strange notion of 'owning' information. Do I demand that anyone who wants to make a copy of a work of mine pay me to get permission to do so? Do I demand that nobody ever try to get around any protections on said works on pain of litigation? Certainly not.

  • It was also found that someone putting a foot up Judge Ronald Whyte's ass will in no way eliminates or substantially impair his ability to walk. The esteemed judge may find it more difficult to engage in certain quick strides but nevertheless, walking will still be possible.
  • Ok, let's see if I understand the judge's argument: The DMCA doesn't prevent fair use, it just makes it more difficult: ``The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.''

    Ok, now we're on the slippery slope, because now we can encrypt any digital content without preventing fair use. The judge is speaking about electronic books, but this argument applies to audio, video, and so on...

    The judge agrees that software code is speech and is protected by first amendment rights, but then he proceeds to limit those rights even though fair use is a recognized right.

    • Ok, now we're on the slippery slope, because now we can encrypt any digital content without preventing fair use. The judge is speaking about electronic books, but this argument applies to audio, video, and so on...

      The point which the US judiciary appears to be missing is that the special catagory of "digital content" has been invented out of thin air.
      The US Congress simply does not have the authority to make a law which treats copyrighted material differently depending on media. About the only permitted variation would be different terms for different times of works, so long as terms are limited.
    • No this is even more fun.
      Thus, circumventing use restriction is not unlawful, but in order to protect the rights of copyright owners while maintaining fair use, Congress banned trafficking in devices that are primarily designed for the purpose of circumventing any technological measure that "effectively protects a right of a copyright owner," or that have limited commercially significant purposes other than circumventing use restrictions, or that are marked for use in circumventing the use restrictions.

      So what we've got here is, if you can program it yourself, exercise your fair use rights as much as you wish but try and pass your tool to others and watch out. You're in violation.

      Because that's exactly what's it will be. Give me an example of any program that will not be a violation of 1201(b). We've already been told by the courts and the copyright office that developing a tool to view DVDs under linux isn't protected. One says the affected population is too small and the other says the copyright owners don't have to cater to every Tom, Dick and Harry out there. Under this interpretation the only ones who will have fair use will be the technologically savy.

      However, I will say this. His discussion of what is fair use is concise, and understandable. Unfortunately, he brings up a telling point.

      Id. There is no bright line test for determining whether any particular use is a "fair use" or is instead an act of copyright infringement, and each use requires a case-by-case determination. See Harper & Row,Publishers v. nation Enters., 471 U.S. 539,549(1985).

      Which, in my cynical mind, means big companies get to sue, sue, and sue some more while the little guy can only hope that some organization like the EFF will back them lest they go broke defending themselves. Eh, time will tell.

  • Fair Use vs one can hire monks to scribe (Score:4, Interesting)

    by Seth Finkelstein ( 90154 ) on Thursday May 09, 2002 @01:39AM (#3489105) Homepage Journal
    I think the definitive slogan should be

    Fair use doesn't mean that one can hire monks to scribe

    I take this from the EFF Supplemental Letter Brief in Corley v. Universal appeal [eff.org]

    2. Can Congress Eliminate Fair Use in New Media?

    At argument, the Court asked whether "fair use" meant a right to access the work in the technologically most usable form. The short answer is that fair use extends to works in whatever form they are offered to the public.

    The longer answer is that, since fair use is the safety valve by which the First Amendment and copyright exist peacefully, if different media permit different levels of individual expression through fair use, then decisions by Congress to impede the most useful means require justification under the First Amendment. A prohibition on using copy machines to make fair use could not be answered - under today's First Amendment law - with the retort that one can hire monks to scribe the relevant passages.

    Unfortunately, the courts so far seem to be holding the opposite :-(

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

  • Paper vs digital (Score:3, Interesting)

    by Alsee ( 515537 ) on Thursday May 09, 2002 @01:41AM (#3489115) Homepage
    If you substitute 'book' for 'computer' and 'printed text' for 'computer data' it becomes pretty obvious just how stupid DMCA, SSSCA, CBDTPA, and all the DRM schemes are.

    We're getting screwed because so many people find "computer bytes" to be myterious and magical. A byte is very much like a letter on a piece of paper. If it's legal to do something with a piece of paper, it should be legal on a computer.

    -
    • This is the best analogy so far...

      I can, for arguements sake, buy the book in print format to distribute according to Fair Use and:

      A. Hand transcribe it.

      B. Go to Kinko's and copy it page for page.

      C. Buy an OCR scanner and again copy it page for page.

      or

      D. Use the Elcomsoft software and distribute it much the same as the above examples...

      What is the difference? None. I'm merely using technology to enhance my performance.

      As long as I am distributing according to Fair Use I haven't broken any laws... or have I? the DMCA would have it to be that I have, somehow.

      Prosecute people for breaking a law, not for creating something that 'COULD' break the law.

      What ever happened to 'innocent until proven guilty' or the 'right to bear arms' or 'freedom of speech' or any of our constitutional rights that specifically were created to keep citizens from being persecuted for the potential of committing crimes.

      We are all potentially committing crimes just by being alive.

      • Exactly.

        It's all about taking away rights and creating new crimes.

        "Our business model isn't working because people have the right to do X, Y, and Z. Please make X, Y, and Z illegal so we can keep making money. Businesses making money is good for the economy. We are at war with terrorists! If you don't help the economy you're helping the terrorists win! Think of the children!"

        -
  • "The government contends that computer code is not speech and hence is not subject to First Amendment protections," he wrote. "The court disagrees. Computer software is expression that is protected by the copyright laws and is therefore 'speech' at some level, speech that is protected at some level by the First Amendment." It was my understanding (perhaps incorrectly) that one of the major premises in past cases and in pushing foward the DMCA is that code/programming was NOT protected under the 1st. While it apparently does not have bearing on THIS case, what would this ruling do to future cases that hinge on that arguement?
  • Hmm. It's illegal to provide a tool to turn ebooks into unencrypted pdf huh?

    Step 1: Buy legit ebook.

    Step 2: Open ebook.

    Step 3: Grab screenshot, turn page, repeat.

    Step 4: Embed graphic in Preview.

    Step 5: Write script to automate process.

    Step 6: Save as PDF

    Step 7: Enjoy on system of choice and share with friends.

    I hope non-infringing uses count for something...

  • Judge Says Russia Software Company Can Be Tried
    By REUTERS

    Filed at 9:56 p.m. ET

    SAN FRANCISCO (Reuters) - A federal judge on Wednesday denied final motions to dismiss a lawsuit against a Russian software company accused of violating a controversial U.S. copyright law that defense lawyers argued is unconstitutional.

    U.S. District Court Judge Ronald Whyte in San Jose, California, rejected the argument of lawyers for ElcomSoft Co. Ltd. who said the 1998 Digital Millennium Copyright Act was overly vague, violated free speech rights and infringed on the established right to ``fair use'' of copyrighted material.

    Moscow-based ElcomSoft briefly sold a computer program over the Internet last year that allowed people using Adobe Systems Inc.'s (ADBE.O) eBook Reader to circumvent copyright protections so they could copy and print digital books, as well as transfer them to other computers and have the computer read them aloud.

    ``The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,'' the judge wrote in a 35-page opinion. ``The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.''

    In addition, Whyte noted that there has been no generally recognized First Amendment right to make back-up copies of electronic works.

    ``In short, the statute bans trafficking in any device that bypasses or circumvents a restriction on copying or performing a work,'' regardless of whether it was designed to enable fair use, Whyte said.

    While agreeing with defense lawyers that computer code can be speech and thus protected by the First Amendment, the judge found that in enacting the DMCA, the U.S. Congress sought to ban code not because of what it says but because of what it does.

    The case is seen as a crucial test of the DMCA, which civil rights advocates and software programmers say gives copyright owners broader rights than they have over non-digital material, at the expense of individual rights to legitimate users.

    Movie studios and record labels argue that the law is necessary to prevent unauthorized copying of films and music over the Internet, where digital material is easily downloaded and swapped.

    FREE SPEECH PROTECTIONS OF CODE

    ``In the digital age, more and more conduct occurs through the use of computers and over the Internet. Accordingly, more and more conduct occurs through ``speech'' by way of messages typed onto a keyboard or implemented through the use of computer code when the object code commands computers to perform certain functions,'' Whyte said.

    ``The mere fact that this conduct occurs at some level through expression does not elevate all such conduct to the highest levels of First Amendment protection,'' he said.

    ``The DMCA does not burden substantially more speech than is necessary to achieve the government's asserted goals of promoting electronic commerce, protecting copyrights and preventing electronic piracy,'' Whyte said.

    A federal prosecutor declined to comment on the ruling. Meanwhile, defense lawyer Joseph Burton, of the San Francisco law firm of Duane Morris, said it is likely he will appeal the ruling.

    ``It's difficult to understand how, without digital tools, you can achieve fair use of digital material,'' Burton said from a hotel room in Chicago. ``To me that's a paradox.''

    The programmer who wrote the product at the heart of the case was released with the promise that charges would be dropped against him in exchange for his testimony.

    Dmitry Sklyarov, 27, returned home in December and vowed to return to testify in support of his employer. He was arrested last July after speaking at the DefCon hacker conference in Las Vegas.

    A hearing is scheduled for May 20 at which the court is expected to set a trial date. ElcomSoft faces $2.25 million in fines if convicted.

    The judge previously denied two other defense motions to dismiss the case.
  • JUDGE Says: 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.'

    Fair use is still available.. well yeah! through elcom software program!! right?

  • The ramifications of the judgement are clear, with the evil of the DMCA becoming clearer than ever.

    The Corporate Giants of this country have been able to pass, what, in practice, is now a constitutional amendment outlawing speech which they find, shall we say, "obscene".

    From the judgement:

    The conversion accomplished by the AEBPR program enables a purchaser of an ebook to engage in "fair use" of an ebook without infringing the copyright law; ... Defendent was indicted for alleged violations of [the DMCA] (emphisis added.)

    I can almost hear the Equity Lords [defenselink.mil] yelling "Bad Speech! You go Squish Now!"

  • Use the NYT Random Login Generator [majcher.com] to get around that pesky registration requirement.
  • "The mere fact that this conduct occurs at some level through expression does not elevate all such conduct to the highest levels of First Amendment protection. Doing so would turn centuries of our law and legal tradition on its head, eviscerating the carefully crafted balance between protecting free speech and permissible governmental regulation"

    What the hell is this judge refering to? I don't know of any permissible goverment regulation on speech(don't even start with the whole yelling fire in a crowded theater,that clearly does not apply). I was not even aware of diferent "levels" of speech. Is politcal speech protected less then artistic speech? how does one define where one level ends and the next begins? This idea is a pretty terrifying prospect to me.

    • Re:huh? (Score:5, Informative)

      by DennyK ( 308810 ) on Thursday May 09, 2002 @03:44AM (#3489318)
      There are levels of distinction and laws which forbid certain types of speech. In general, "personal" speech (non-commercial) enjoys more Constitutional protection than commercial speech. For example, it is illegal for companies to misrepresent or lie about their products. There are laws about what descriptive phrases or words can appear on product labels (i.e. "low-fat", "fat-free").

      Even personal speech is not protected 100%. Libel, slander, harassment, assault, death threats, etc. are all illegal, and the First Amendment does not protect them. Other things and actions which could be defined as "forms of expression" (I use the term loosely) like child pornography and public nudity can also be made illegal, and are not considered protected.

      That said, I disagree with most of the judge's arguments here. Especially the part about "fair use" not being interfered with because it is still "possible" to excercise fair-use rights, it's just harder. *That* is a slippery slope indeed. You could argue that, because it is theoretically possible to take a random clump of matter and rearrange the subatomic particles contained within it to form an exact duplicate of a "protected" work, it is perfectly all right to do away with every other concievable method of duplicating said work for fair use. Sure, it's more difficult to construct a duplicate from the subatomic level, but hey, it's still *possible*, right?

      As for the whole IP market...what all of this boils down to is that companies who make their living "selling" intellectual property are losing their control over the distribution. The trouble is, almost all IP is abstract. It's just a bunch of ideas. There is no physical component to sell. In theory, in a true free market, it would be impossible to sell ideas, because they are not limited resources. Yes, it is possible to run out of NEW ideas...but once an idea exists, it could, in theory, be distributed to every being on this planet with no limitations. Everyone can possess the same idea without taking it away from anyone else.

      Those who sell IP have always relied on the fact that in order to spread those ideas reliably, a physical medium is neccesary...and since this physical medium is a limited resource, it can be sold. Books, music cassettes, VHS tapes...they are all physical, limited objects. If you have a book, you can't give it to your neighbor and keep reading it yourself at the same time...so if you both want to read it, you both have to buy a book. Duplicating the book yourself is certainly possible. You can memorize it, transcribe it, or even photocopy it. But these methods are all expensive in terms of time or money, and the results are not as reliable. IP merchants were able to use these physical limitations to exert control over the market and artificially inflate the price of their ideas.

      The digital age, however, in one swift stroke, has destroyed that physical limitation which allowed IP to be sold like it was a limited physical resource. Now, suddenly, it is fast, easy, and cheap to take a single copy of an Intellectual Property and make hundreds, thousands, even millions of copies of it...copies that are indistinguishable from the original.

      For humanity, this is a wonderful thing. Now ideas can be shared with millions of people at a tiny fraction of what it would cost a decade ago, with no need to worry about having to tie them up in artificial physical limitations. But for those companies who have been profiting for years on the artificial scarcity of IP in the physical world, it's an absolute nightmare. Their control is gone. Their entire business model is crashing and burning around them. That's why they are buying Congressmen and new laws like they're on clearance at Wal-Mart. They aren't concerned about this new world of almost limitless, extremely low-cost distribution of IP. They aren't apprehensive. They're freaking terrified.

      The trouble is, all of these IP merchants are obsolete. They're outdated. They're not needed anymore...or won't be needed for much longer. They're going the way of the horsed carriage and the typewriter. Or, at least, they should be. But they're putting up one hell of a fight. They don't like this brave new world, so they're doing their damndest to reverse the progress we've made to reach this point. I don't think they will succeed in the long run. They can't undo what's been done, no matter how much money they throw at Congress and the lawmakers. Eventually, they will wither away and die, or adapt to the new environment. But I fear that they are going to make the transision as painful for everyone around them as they can before they do.

      It's really unfortunate. Here, we have the ability to pass ideas in many formats (verbal, audible, visual) to a vast number of people at once at a relatively low cost. It's the next best thing to matter replication. But a few greedy corporations, trying desperately to hold on to a dying business model, are trying to destroy this ability, or at the least, to cripple it, reduce it to a fraction of it's current usefulness...all in the name of their own profit margins. Sad, sad times...

      DennyK

    • Re:huh? (Score:2, Informative)

      by mamba-mamba ( 445365 )
      Yes, different types of speech are protected differently. Some things are deemed to have expressive value while also having a non-expresive component. I figured this out by reading legal briefs and court judgments.

      There is a concept of something called "pure speech" which would probably encompass any written or recorded form of human language, but not necessarily computer code. Pure speech is the most protected form of speech, and the courts usually view political expression as the most important form of pure speech. Things like paintings are highly expressive, also, but probably not considered "pure speech." Gun shows have been defended on the basis of free speech. The idea is that gun shows have some expressive value, but they are certainly not pure speech. Burning the US flag is a political statement which has been ruled to be protected by the first ammendment. In the Viet Nam war era, a case arose where someone was arrested for wearing a shirt that said "Fuck the draft" into a court. Eventually it was ruled that this was protected expression.

      Another important concept in free speech cases is whether a plaintiff's request seeks to impose a prior restraint. A prior restraint, for example, would be a case where a plaitiff tries to get a court to issue an injunction ahead of time to block the publication of some material. The courts take a VERY dim view of prior restraint on pure speech. On the other hand, libel and slander laws merely seek to hold speakers acountable AFTER they speak, and this doesn't run afoul of the first ammendment.

      Believe it or not, judges are NOT idiots, and free speech is a concept they tend to understand fairly well. They may not always be technologically up to date, of course.

      MM
      --
  • I'd like to point people to some useful references for fair use, copyright, digital issues.

    Free speech vs. Copyright:

    Freedom Of Speech And Injunctions In Intellectual Property Cases (Mark A. Lemley, Eugene Volokh) [ucla.edu]

    Fair Use in terms of First Amendment:

    Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings Of Fair Use Remain An Open Question [duke.edu]

    General Digital Copyright:

    Selected Papers by Pamela Samuelson [berkeley.edu]

    These are good background to understand the concepts. Don't believe everything you read on Slashdot (though this sentence is one of the things you should believe :-) ).

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

  • What is so hard about this, people? (Score:4, Interesting)

    by Greyfox ( 87712 ) on Thursday May 09, 2002 @04:14AM (#3489406) Homepage Journal
    We need to put this code is speech thing to bed once and for all.

    Is code speech? I don't know. Can you copyright it? Apparently every company that has EVER written software thinks so. It's the very foundation of the software industry business model. The ability to copyright code is a basic assumption. Time and time again courts have found for the holder of the copyright in code theft cases. I think sufficient legal precident exists that says that code is speech.

    Since code is speech, for the most part the DMCA should simply not apply. Most attempts to limit speech fail miserably; witness attempts to enforce COPA, video game age restrictions (in most juristictions,) and even virtual kiddie porn. If even kiddie porn is protected speech except under the narrowest of circumstances, source code should be a no brainer. The DMCA obviously is in conflict with the first ammendment. Had Elcomsoft simply copyrighted their source code and published as a book (A trick Zimmerman sucessfully used to get around the PGP restrictions in the USA) the question probably would never even have come up.

    Furthermore, the assumption in the industry, again bourne up by legal precident, is that the source code copyright extends to binary executable files. If I put the Windows binaries up on a 31337 W4R3Z site, Microsoft will come after me for copyright violations, and they'd win. If I tried to argue that copyright did not apply to the executables, I'd get laughed out of court. This despite the fact that the opinion in Congress is currently that all code, source or binary, comprises a machine and has no speech component and may be arbitrarily restricted. If it is not speech, copyright must simply not apply. If copyright does not apply, the entire software industry is will bring lobbyists to bear faster than I can hit submit on this post.

    obDisclamer: I am not a lawyer. But I watched most of the Ally McBeal episodes.

  • Can someone please explain the following to me in simple terms:

    If Elcomsoft loses and the judge imposes a huge fine and Elcomsoft refuses to pay. What happens then?

    Do the Americans lock up any Elcomsoft employees in the USA at the time?

    Do they issue extradition warrants to the Russian authorities?

    Do they try to force the Russians to sieze the assets of Elcomsoft in Russia?

    Something else....?

    Thanks,

  • Face it, the only right you'll have is the right to not buy a product. And face it, soon those products will be necessary to exercise other things that in the past was referred to as "rights", such as free speech, voting rights, the right to engage in your community, and the right to enjoy advances in arts in science. There will be products that violate your rights to engage in some or more of these, but necessary to engage in another. For example, if you choose to have voting rights, you buy a product to have voting rights, but when you buy that product, you loose your right to read books. That's my dystopia.

    If we just sit and watch, it'll be like that in 30 years. I'm not going to just sit and see it happen. I hope, neither will you.

  • Now that archive.nytimes doesnt work anymore, here is a quick fix for all the karma whores (like me) to post.

    NYT Random Login Generator [majcher.com]

  • Of course fair use doesn't apply. Fair use is quoting a small piece of a work for review or teaching purposes (yes, it's bigger than that, that is the simplified version). Fair use says nothing about making a backup copy or being able to access something in any format you want. That comes from the Betamax timeshifting case. Of course the ability to timeshift was never identified as a "right", you are just able to use that as a defense if you are sued. So I may not agree with the judges overall decision, his reasoning is sounds. This case has nothing to do with Fair Use and the DMCA as it is being used here doesn't infringe upon fiar use. You can copy text by hand or retype it for a review, just as you would have to do with a hard copy of a book. (although the DMCA does infringe in other aspects, that isn't what the judge was looking at)
  • OK -- I can buy the judge's implied [unstated] argument that Congress gave "Fair Use" via legislation, and can take it away the same way with the DMCA. However much we might like fair use to be a Constituational Right [9th?], it doesn't appear to be.

    But what I find really scary is the Judge's stated rationale that speech is conduct! Short of fraud and inciting violence, it is not, and never shall be. The fundamental purpose of the 1st Ammendment is to make this clear and to keep meddlesome officials from interfering with speech they don't like.

    This is in for Appeal.

  • ...is really addicted to soap operas. This way, when he buys his new HDTV and compatible recording device he finds himself unable to record his favorite soaps. I also hope he scratches every single DVD he owns and accidently buys a few from another marketing zone.

  • Interesting points from the actual ruling (Score:5, Informative)

    by Rogerborg ( 306625 ) on Thursday May 09, 2002 @08:11AM (#3489928) Homepage

    On the Fifth Amendment and due process argument, Elcomsoft argued that the DMCA is too vague because it doesn't explain which devices are legal (because they are primarily designed to enable allowed fair uses) and which are not. The Court recognised the difference (explicit in the DMCA) between bypassing protection to simply obtain raw access to content, and bypassing protection to make a specific fair use of the content. The distinction is that in the latter case, the act of bypassing is allowed. However, it is still (explicit in the DMCA) illegal to make or traffic in a device to do this. Now, there's a quandary. You can obtain a bypassing device, and you can use it to make a fair use of the content, but you can't make or supply the device.

    The government argued that there was no vagueness because all tools that allow bypassing a protection mechanism are banned, even those which it would be legal to use. The judge (believe it or not) agreed!

    • "Thus, while it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention [...] Accordingly, there is no ambiguity in what tools are allowed and what tools are prohibited because the statute bans trafficking in or the marketing of all circumvention devices." [emphasis is in the original]

    On the First Amendment, the court agreed that both source and object code is speech (nice), but then it gets nasty, citing from case history:

    • "[If a statute or regulation is content-neutral it] will be sustained if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restrictions on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

    Yes, there it is. "Governmental interest" trumps free expression. Or: "I think what the Consitution meant to say was...". For those who missed it, the Consitution is aimed primarily at limiting the powers of government. Government cannot trump the Consitution, and especially it cannot do it whenever it feels like it simply by passing a law. Bear in mind that any law passed by Congress must surely qualify as "substantial governmental interest" (otherwise why did they pass it? They were bored?), and so any law that does not directly limit freedom of expression trumps the First Amendment. Appalling.

    As regards to lumping the rights of copyright holders and the promotion of electronic commerce together (as mentioned in the EFF report, which I assumed was hyperbole), the court does do this several times, and claims that Congress did as well. Yes, that's right, copyright is now merely a mechanism to further commerce (and not to put content into the public domain, the actual intention). Viewed like this, there is of course no reason why copyright should ever expire, or why there should be any fair use rights other than perhaps the right to produce commentary for positive review. Negative criticism, parody and academic study do not contribute to "furthering commerce".

    Further, the court finds that the government has a "substantial and legitimate interest" in "promoting commerce" (note: "promoting", not "protecting"), and that "The absense of effective technological restrictions to prevent copyright infringement would inevitably result in even more rampant piracy, with a corresponding likely decrease in the willingness of authors and owners of copyrighted works to produce them in digital form or make the works available on-line.". This effectively validates the DMCA and confirms that "promoting commerce" trumps fair use. This is a speculative conclusion based purely on subjective unsubtantiated material provided by the government, a conclusion that a higher court could well rip to shreds.

    Other spurious conclusions: the defendants argued that the DMCA "effectively eliminates fair use" (my emphasis). The court ruled that "the DMCA does not "eliminate" fair use", and goes on to say that fair use is still possible by transcribing by hand. But note that the court only considers fair use for written works, which are at issue here. How do you transcribe a video clip?

    The court makes this assertion again when considering whether Congress exceeded its authority when drawing up the DMCA, and again asserts that the DMCA does not prohibit fair use - but again only gives a counter example for textual works. Even the point about the DMCA preventing copying once the work is in the public domain is rejected: the court agrees that it would still not be legal to make or traffic in (and therefore obtain) a device to access the content, but once again asserts that this does not prevent copying, which is true only for transcribable text.

    Basically, Elcomsoft are boned, and they're boned right from the start here, because while denying the dismissal, the court has stated clearly that all circumvention devices are illegal, even if they are primarily designed for legal fair use purposes. This one's going to have to go to a higher court, and as an aside, we really need a DMCA challenge that's not based on text, so it can be shown more clearly that the DMCA does "effectively eliminate" both fair use while under copyright, and full use when in the public domain.

    IANAL, but then again, bear in mind that lawyers (like judges) deal only in what's legal, not what is right. This court has pointed out that the DMCA is stupid, but then asserts that just because it's stupid, it's not wrong, because Congress fully intended for it to be exactly that stupid. Go figure.


    • just because it's stupid, it's not wrong, because Congress fully intended for it to be exactly that stupid

      I happen to agree with that idea, but I see the DMCA as not only stupid, but also morally wrong. As you ponted out, we need a case to properly demonstrate that the DMCA does eliminate fair use - the chances of Congress waking up and reversing it themselves seems... very small.

  • Take that argument and.. (Score:3, Funny)

    by A_Non_Moose ( 413034 ) on Thursday May 09, 2002 @08:13AM (#3489930) Homepage Journal
    turn it around:
    "The right to fair use is present but more difficult to use; that does not mean it isn't present."

    Ok, your honor, we'd like you to submerge you in this tank of water and seal it shut.
    For you see, the ability to breath is going to be difficult, but that does not mean it is not present.

    There is O2 in air and water, so, by your logic you should be able to breath water because what you need is in the water.

    There is an argument that...ahem...holds water.

    .

  • Civil disobedience

    void CSSdescramble(unsigned char *sec,unsigned char *key)
    {
    unsigned int t1,t2,t3,t4,t5,t6;
    unsigned char *end=sec+0x800;

    t1=key[0]^sec[0x54]|0x100;
    t2=key[1]^sec[0x55];
    t3=(*((unsigned int *)(key+2)))^(*((unsigned int *)(sec+0x56)));
    t4=t3&7;
    t3=t3*2+8-t4;
    sec+=0x80;
    t5=0;
    while(sec!=end)
    {
    t4=CSStab2[t2]^CSStab3[t1];
    t2=t1>>1;
    t1=((t1&1)<<8)^t4;
    t4=CSStab5[t4];
    t6=(((((((t3>>3)^t3)>>1)^t3)>>8) ^t3)>>5)&0xff;
    t3=(t3<<8)|t6;
    t6=CSStab4[t6];
    t5+=t6+t4;
    *sec++=CSStab1[*sec]^(t5&0xff);
    t5>>=8;
    }
    }
  • Particularly bizaare was the judge's claim that the DMCA is OK because it is "content-neutral, just as would be a restriction on trafficking in skeleton keys identified because of their capacity to unlock jail cells, even though some of the keys happened to bear a slogan or other legend that qualified as a speech component."

    It's more like saying that it's a felony to manufacture a key to open the door to a car that you own; the key is a means to excercise a legal right, or perhaps an expression of the means to do so, but it is not a sandwich board for expression. What is this guy smoking?

    I won't even mention the fact that he's on flimsy ground saying that fair use is possible; how, by retyping it yourself? What if audio or video were protected instead of text? And what happens when fair use is made impossible by technology, in his view? Does the law magically change? Does he suddenly reverse himself? Can fair usage be flat outlawed as long as it's "content neutral"? This judge may be really trying hard to avoid setting precedent by ruling with sophistry. Or, perhaps, letting the trial proceed so evidence can be presented so that he can rule on an actual point of law, but I doubt it.

    On the other hand, his characterization of code as speech which nonetheless does not enjoy the full protection of speech is, er, interesting. He sounds like the kind of retard who finds it acceptable for the NYTimes to post links to DeCSS code, but illegal for 2600 to do so. The amount of contradictions and hypocrisy engendered by the DMCA is sufficient evidence that it's the kind of law that has no place in a free republic.

  • Reminds me of a song:

    You have the right to free speech
    As long as you aren't dumb enough to actually try it.

    --The Clash, Know Your Rights
  • What Elcom needs to do is get charges brought up against Adobe in Russian court. IANA(Russian)L, but I recall from an earlier article regarding this whole fiasco that Russian law falls very heavily on the side of consumer rights, and that under that legal framework Adobe's ebook encryption is actually illegal. Elcom's product was created for, and within, that legal framework.

    I understand that the US has determined it has jurisdiction because they were able to purchase Elcom's product in the US from US based vendors. Fine, I can accept that; but turn about is fair play. Obviously Adobe ebooks are available in Russia, or Elcom's product wouldn't exist. I say that Elcom should use the same tactics against Adobe in Russia that Adobe has used against them here in the US.

    And yes, I'm aware of Adobe's statement that they don't want Elcom prosecuted, and I think it's a bullshit PR stunt. If I shoot somebody, the fact that I didn't want them to die does not excuse the fact that I pointed the gun at them and pulled the trigger. Adobe is clearly trying to restrict the rights of the Russian people, and should be punished to the full extent of the law.

  • If code is protected speech, then the DMCA (or at least portions of it) is unconstitutional. I don't see how it can be any more complex than that. Constitutional rights have always been held at higher priority over laws passed by Congress.

    How can the DMCA trump the First Ammendment in this way? It seems to me like the judge is saying, "Well, even though code is speech, and speech is guaranteed under the 1st. Ammendment, because the DMCA is so popular with all the companies that gave money to the Senators who appointed me, screw civil liberties and everything this country was founded on. Now shut up and face my wrath, you evil Russian communist/terrorist hackers!"

    This case has been sickening from the moment it started. If anything, it has displayed how justice in the US is not blind. Elcomsoft is a small Russian firm, and is likely to be totally screwed over by this. A huge company from the US would get a slap on the wrist fine and be let off for the same thing, if it was even prosecuted in the first place.
  • 'The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,' the judge wrote in a 35-page opinion. 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.'

    War is peace.
    Slavery is freedom.
    Ignorance is strength.

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