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The Courts Government News

Update To Pavlovich DeCSS case; Stay Lifted 119

Posted by Hemos from the moving-forward-with-the-case dept.
MeanMF writes "Update to this article:Infoworld reports that the Justice O'Connor of the U.S. Supreme Court has lifted the temporary stay on the California Supreme Court's ruling that Pavlovich can not be tried in California courts. That ruling can now take effect. More from the EFF."
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Update To Pavlovich DeCSS case; Stay Lifted More

Update To Pavlovich DeCSS case; Stay Lifted

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  • personal jurisdiction (Score:5, Informative)

    by peterb ( 13831 ) on Saturday January 04, 2003 @10:01AM (#5013819) Homepage Journal

    When reading tidbits like this, it's important to keep in mind that Sandra Day wasn't giving any clues as to the Supreme Court's take on the merits of the case. It looks to me like a purely procedural question, that of personal jurisdiction -- does the California court have the right to drag someone from Texas into Court there. Nothing to do specifically with DeCSS at all.

    Still, it's always nice to see things get just a little bit harder for the entertainment industry.

    • 1st A. and PJ (Score:5, Insightful)

      by MacAndrew ( 463832 ) on Saturday January 04, 2003 @11:05AM (#5013954) Homepage
      I would like to know why O'Connor acted. Perhaps she wanted some research done, or perhaps she floated the case by other Justices without getting a bite. It takes four Justices to grant certiorari and hear the full case.

      To label personal jurisdiction a procedural question is misleading. Things like filing dates for briefs are classically procedural. But personal jurisdiction goes to constitutional due process and the very life or death of entire classes of cases. PJ over Web disputes will prove to be as critical issue as the free speech question at the heart of this DMCA case. What good is free speech in the U.S. if you can be charged in some country antagonistic to the concept (Singapore, China, others).

      Here, PJ appears decides the case for now. PJ is not a question of the rights of the CA court, but its power, and fundamental fairness to the defendant ("traditional notions of fair play and substantial justice"). If the party has not had or consented to contact with the forum, it is a violation of substantive due process to impose jurisidiction. You don't have to visit the state to get into trouble there. Yet it is important also to consider fairness to the plaintiff, who may have been injured by something really foul done by the defendant -- they're not all as sympathetic as Pavlovich.

      Already, the U.S. is already indirectly disagreeing with Australia over this point, a recent Fourth Circuit case [idg.net]. Note the heavy hitters who participated in that appeal --- NYT, WP, DJ, and others. It's not just little website operators who are worried.

      The questions can become quite difficult and are the sort of stuff law professors use to torture their students now that thumbscrews are banned. How much "contact" is enough? Is passing over California in the Space Shuttle or ISS enough for them to nail you court? (Don't laugh, I bet this will comes up some day: picture astronaut Francine is on break sitting at his console typing away decryption codes while zipping over dozens of states and countries... for that matter, who has jurisdiction and whose laws apply the first time two pieces of space stuff whack into each other? The first fender bender will be messy.)

      Anyway, I'm skeptical whether California got PJ right here -- in an analytical sense that will carry the day for eventual federal standards -- but for all intents it appears the CA aspect of the litigation is dead. Sooner or later, this jurisdictional question will land squarely in the U.S. Supreme Court.

      Just thinking out loud... :)

      • Re:1st A. and PJ (Score:4, Interesting)

        by aufait ( 45237 ) on Saturday January 04, 2003 @11:35AM (#5014024) Homepage
        I would like to know why O'Connor acted.



        Reading between the lines:


        Justice Sandra Day O'Connor lifted the stay Friday, ending the DVD Copy Control Association's (DVD CCA's) effort to keep a California Supreme Court ruling from taking effect... The DVD CCA filed an application for a stay on the California ruling on Dec. 26. The stay was granted by O'Connor pending a response from Pavlovich's attorney. That response was due Thursday.


        I would guess that she was swayed by the response since she lifted it the day after the response was due.



        Is passing over California in the Space Shuttle or ISS enough for them to nail you court?



        It already has. Many years ago, a dry state, IIRC OK, banned the serving of drinks on any flights that passed over their boundries. It was eventually overturned; but, I don't recall on which grounds.

        • Re:1st A. and PJ (Score:3, Informative)

          by MacAndrew ( 463832 )
          It already has. Many years ago, a dry state, IIRC OK, banned the serving of drinks on any flights that passed over their boundries. It was eventually overturned; but, I don't recall on which grounds.

          Good cite, wrong generalization. I don't know how that was decided either, perhaps interstate commerce. But I was referring to jurisdiction over person, not application of law to that person.

          The Q again turns on contacts and fairness. If that overflying plane dropped a rock on Oklahoma, we wouldn't question jurisdiction over the perpetrators. Mere overflight, without some connection, is probably not minimum contacts. But if something happens, whose law applies, and where is the case tried?

          So you look at what the person did, and what they intended, and the impact in the forum state.
        • Well, I could imagine that someone flying over Oklahoma could be considered to be really "in" Oklahoma. If they have an emergency, they'll land in an Oklahoma airport, or on a farm or something, and they'll need the services of the state. Or they could crash into something in Oklahoma.

          Someone in the ISS is totally detached from Oklahoma, since it's not exactly possible for them to reach Oklahoma just because they're over it, I guess.
      • --california has tried for taxing overflights of it's airspace in a manner, here's a link to some info on it, taxing satellite tv receiver dishes but not cable boxes [skyreport.com]

        and here's when la county tried to charge property taxes for satellites overhead [broadcastengineering.com]

        Here's a clue to the tax problem in california, they could try controlling their borders better, allow lawful citizens to live and work there, kick out illegal criminals. Also stop being a clueless nanny state in the legislature. Might save a few bucks that way. Just a thought.

      • It is my honest opinion that the world would be better off if the governments of all nations realized they have no juristiction over the web and no authority to make or attempt to enforce laws on web based issues. Rather a seperate government entity composed of hackers (white and black hat) should rule the web and the cyber world that exists within the physical machine on each person's desktop (not just the internet but also the software interface you see when you turn it on). This government can form treaties with existing brick and mortor goverments when a brick and mortor solution is required and members should have diplomatic immunity whereever they happen to reside. These hackers would of course be replaced when AI reaches a sufficient point of developement.
        • "One world government" huh? :)

          Countries do have jurisdiction over things that happen within their borders, things that happen elsewhere with effects within their borders, and acts of their citizens wherever they are. Those are the broad strokes, the devil is in the details. But the basic reality of jurisdiction is neither novel nor oppressive. A group of hackers, or anybody, with the power to "rule the web" could haev terrible consequences not because hackers aren't up to it (necessarily) but because no one is that wise. there is also the problem of bias, which intelligence by no means abolishes.

          I honestly believe that these new problems can be dealt with through the existing framework, and have faith in human intelligence. The internet is really an incremental step in publishing and data transfer, not a whole new game. The real challenge is to harmonize or coordinate all law, not just internet law. Hence things like the Berne Convention with respect to copyright law; and the same law applies regardless of the countries involved or the means used to commit a violation.
          • Every move the existing structure has made to regulate what happens on computers (whether tied to the net or not) at least within the US (and I haven't heard much of good news elsewhere either) has been horribly unethical, not applicable, and ineffective in acomplishing what it's intended to do. Not one world government, only a seperate government for the world of pixels and bit's, which is not a physical location or place on a map which the existing governments can lay claim to. Where the person in front of the terminal is sitting being the basis for who gets to decide whether what they do is wrong or right is the most ridiculous system ever devised, now they'd like to confuse it more than that.
      • Already, the U.S. is already indirectly disagreeing with Australia over this point

        The matter in Australia is a little different as the defendant in that case did have a business presence there and would therefore normally be subject to Australian jurisdiction anyway. Once you establish a business presence in a state or other country you fall under the jurisdiction of the local courts.
        • Once you establish a business presence in a state or other country you fall under the jurisdiction of the local courts.

          The Australian decision [austlii.edu.au] did not turn on local presence. Rather, it held that a posting in one place is publication anywhere the internet may be accessed. (some commentary [adlawbyrequest.com])

          On the face of it, the Australian court made a strictly logical decision, as defamation law to the present has had no limiting principle except place of publication. The internet renders place of publication an anachronism. The court declined to develop a new limiting principle. As one of the concurrences reasoned:
          165. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.


          166. However, such results are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself[202]. In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair.

          The Australian decision isn't obviously "wrong" but its implications are very disturbing. I don't know the structure of Australian gov't; perhaps there these problems are expected to be taken up by the legislature. In the United States, unlike most countries I know of, the courts can in certain cases overrule the legislature ("judicial review"), and are in a sense its co-equal.

          The upshot is that a website operator not wishing to publish in Australia will have to find some clever way of preventing access, though the structure of the Web makes that all but impossible. Alternatively, any publisher not wanting to roll the dice of international litigation will have to publish to the lowest common dominator of all internet-connected countries, or avoid referring to anyone in countries it wishes to elude. So much for free speech.
          • But you miss the point - it's the combination of the presence in Australia giving the courts jurisdiction and the fact that publication was world wide. The court indicated that defendants beyond it's jurisdiction would not be affected by any such case, without bringing a separate action in the defendants jurisdiction.

            The defense argument that a worldwide corporation with offices in most major countries only published something in NJ is stupid, they were never going to get away with that.

            The Australian court ruling is meaningless for anybody that doesn't live or have a business presence in Australia as any judgement would have to be enforced through your local courts.
            • I read the decision and I just don't see it; please quote whatever I've missed. The court repeatedly acknowledges to the breadth of its decision, and concludes that "the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort."

              So, if you write about enough different people -- "the most unusual of cases" -- you may indeed face "the defamation laws of every country from Afghanistan to Zimbabwe." Those potential plaintiffs don't have to live in whatever country; all they need is a reputation there and access to the courts.
              • The jurisdiction point is clear enough that DJ didn't even bother raising it, instead they tried the obtuse argument that they should be sued in NJ because that's where they published it. This is despite their own admission that it is a worldwide publication

                This argument in itself is poor because although the court didn't spell it out in its ruling both the plaintiff and defendants are "residents" in the courts jurisdiction which makes it the most logical venue for action.

                In the sections you quoted the court noted that a defendant which had no presence in the courts jurisdiction has little to fear because the court can excercise no power over it.

                A question to be considered in any such cases is the one of "Is there a more appropriate venue for this action". In the DJ case it's hard to see how another venue would be more appropriate as both plaintiff & defendant fall under the jurisdiction of the court.

                In the DeCSS matther there is the problem of the defendant having no legal presence in the state of California. Clearly federal court would have been a better option but then the plaintiff would lose the advantage of the California Trade Secrets law.

                Very often a court will make a decision and then seek to find legal justification for that decision, rather than the other way round. So while much of my reasoning may have been in the minds of the judges it's not necessary for them to enumerate every reason for their decision as long as the justification they give is valid in law.

                Consider the possibility of you as a US Citizen deliberately positioning your web server in another country to sidestep US law, would you expect to be untouched by US jurisdiction for breaking US law ?
      • If the party has not had or consented to contact with the forum, it is a violation of substantive due process to impose jurisidiction. You don't have to visit the state to get into trouble there. Yet it is important also to consider fairness to the plaintiff, who may have been injured by something really foul done by the defendant -- they're not all as sympathetic as Pavlovich.

        Whoa there, wait a second. Don't confuse forum (the state of CA) and plaintiff (DVD CCA). To make your argument symmetric, you would have to reword your third sentance to say:

        Yet it is important also to consider fairness to the
        forum, who may have been injured by something really foul done by the defendant -- they're not all as sympathetic as Pavlovich.
        Note now that it's not always the case that a forum is damaged by certain actions which damage a business headquartered or operating within that forum. The question of whether or not the damage is enough to warrant intervention must be answered by the state legislators. It may not be, after all. In this case, the entertainment industry is involved, and they are so important to the CA economy that the state Supreme Court felt intervention was warranted.

        In any case, it seems clear to me that any intervention must necessarily be conducted at the federal level, as it clearly involves interstate commerce. The CA Supreme Court felt the same way, and O'Connor is right on the money with this call.

        • Nope, I said it right. People have due process rights, not forums. The lawsuit was about private rights, not California's, except to vindicate the rights of its citizens.

          In this case, CA was home to the plaintiffs. The forum Q here was simply which forums are constitutionally appropriate, and Calif. did not believe they were one of them. The Constitution gives them no choice. Had they rules the other way and been wrong, the Supreme Court might have overruled them. (There are secondary nonconstitutional elements that influence forum choice, too.) There is no reason the dispute has to be in federal court (in which Calif. would probably still be the wrong forum); Texas sounds fine.

          Justice O'Connor didn't make any call other than not referring the Q to the full Court. The Court doesn't care about outcomes in individual cases so much as resolving broad legal controversies, and this difficult Q of personal jurisdiction will be before them soon enough, when they find the right case.
    • O'Connor's ruling is a signal, and hopefully one that will be heeded: the CCA's case is on shaky ground. The case has a fatal jurisdiction problem, and the Supremes would likely not even get into the merits of the case... they would be more concerned with the jurisdiction precident...

      $G

  • Breaking news (Score:4, Funny)

    by urbanjunkie ( 173409 ) on Saturday January 04, 2003 @10:02AM (#5013821) Journal
    A moment of sanity emerges in the US legal system...more at 10

    • Re:Breaking news (Score:2, Interesting)

      by StarOwl ( 131464 )
      A bright ray of sunlight peeking out from the eye of the RIAA/MPAA corporate storm, yes?

      However, why do I have a bad feeling that DVD's and CD's will start to come with shrink-wrap licenses: "By using this disc you agree to these terms of use.... Licensor reserves the right to resolve cases regarding those terms at a venue of its choosing."

      • Re:Breaking news (Score:3, Interesting)

        by Fesh ( 112953 )
        Hey, I'm all for that. It'll be an even more graphic reminder to Joe Sixpack of what the situation already is. Maybe even graphic enough to get him off his duff and doing something about it.
      • I wonder if including shrink-wrap licenses wouldn't backfire for them. Wouldn't it give the consumer the privilege of returning the product even after opening it because you had to first open it to be able to read the license?

        Well, software is supposed to work like that but I understand it's near impossible to return MS Windows when you buy it bundled with a machine.

  • Finally (Score:2, Interesting)

    by dreamchaser ( 49529 )
    I'm glad we are starting to see at least SOME reasonable rulings from the bench. I'm hopeful that Free Speech will prevail. You can't stuff a cat back into the bag once it's out, and it's high time the recording industry realised this and moved on...

    • Re:Finally (Score:3, Funny)

      by sco08y ( 615665 )
      You can't stuff a cat back into the bag once it's out

      Shoot it a few times, just make sure you use a plastic bag.
    • This has nothing to do with free speach. It has to do with limits on jurisdiction. You cannot drag someone from Texas to California to put them on trial for violating California state law. The web server in question is, IIRC, one of the Purdue U servers in IN, and the person had legal residence in TX. CA state law should not apply, and that is what O'Connor ruled.
      • Technicality: O'Connor didn't rule that CA doesn't have jurisdiction, all she did was say that she wasn't convinced by the DVD CCA's arguments for continuing the stay. As for now, the ruling only applies in California, and a judge in, say, Oregon could very well rule the opposite way, since it hasn't been decided by the Supreme Court yet and thus isn't federal law.

  • Manoman (Score:4, Funny)

    by LiftOp ( 637065 ) on Saturday January 04, 2003 @10:16AM (#5013841) Homepage
    Who are you! And what did you do with the court system?!? Answer me!!

  • There's hope yet (Score:5, Interesting)

    by Ninja Master Gara ( 602359 ) on Saturday January 04, 2003 @10:17AM (#5013842) Homepage
    Hopefully DeCSS will be one more in a series of flops that will lead the media industries to more reasonable, consumer based, less technologically heavy handed solutions. I wonder how much marketing all these court cases from the MPAA and the RIAA could have bought, how much talent could have been found and promoted.
    • Hopefully DeCSS will be one more in a series of flops that will lead the media industries to more reasonable, consumer based, less technologically heavy handed solutions.

      There would have to be something on the order of a "regime change" in media companies for that to happen. They have made their money for so long through tight control of the works they distribute that they are unlikely to embrace change. Also, I think there is a matter of pride. These people are too proud and stubborn to let a bunch of filthy thieves (their term) win. They would rather destroy themselves trying to stop such a thing.

      Witness the near-suicidal PR that the RIAA has been engaging for the last 3 years. Who knew that much about the RIAA? They suddenly went on the offensive, and record executives are some of the most vilified people by music fans. Not a good move there. And seemed to violate common sense -- a compulsive, knee-jerk reaction rather than a sound plan based on good business sense.

      If there is going to be a change, the current crop of fools will have to be replaced. There's just no way Hillary Rosen can suddenly embrace MP3 and open, unlimited subscription-based, DRM-free, music distribution and save face.

      Then again, Jack Valenti adjusted quite nicely to the VCR, so maybe I'm wrong. But I have a feeling we'll be hearing from him again ("DivX is like the beltway sniper...").

  • What? No DeCSS link? (Score:5, Insightful)

    by weave ( 48069 ) on Saturday January 04, 2003 @10:18AM (#5013846) Journal
    I noticed under the "links" section of that press release, there wasn't a link to where to get DeCSS.

    Much better to defend others I guess...

    (No, it's not a criticism, just an observation)

  • I think this sums it up nicely (Score:5, Interesting)

    by captainclever ( 568610 ) <rj@audioscrobblCHEETAHer.com minus cat> on Saturday January 04, 2003 @10:22AM (#5013853) Homepage
    "I think its time for this witch hunt to stop. DeCSS is available all over the world. The only people benefiting from this are the trial lawyers being paid tremendous amounts of money by the entertainment companies"
    • Only problem with this is that "trial lawyers" is a code word used by the right wing to designate primarily personal injury plaintiffs' lawyers, who skew overwhelmingly Dem. Not appropriate, in this formulation, to call the paid-by-the-hour big-firm litigators who work for the big entertainment companies "trial lawyers." After all, they never go to trial anyway.

      And yeah, I'm a trial lawyer.
    • "I think its time for this witch hunt to stop. DeCSS is available all over the world. The only people benefiting from this are the trial lawyers being paid tremendous amounts of money by the entertainment companies"

      The value here is in prescedent, not in the direct impact of this case.

  • DeCSS - why bother? (Score:3, Offtopic)

    by jamesjw ( 213986 ) on Saturday January 04, 2003 @10:26AM (#5013862) Homepage

    I dont know why they still use the CSS encryption, its been proven to be easily circumvented..

    Just release new titles with no encryption - those that care enough to copy a DVD will still do it regardless of CSS..

    Personlly, I buy the DVD's I wish to watch.. ones I dont want to own I rent and some of them (Like the movie: Dungeons & Dragons) wouldnt eb worth wasting a blank media on :)

    They should ditch region coding too.. but thats another argument.

    • Re:DeCSS - why bother? (Score:2, Informative)

      by Anonymous Coward
      Region coding is the reason they still use CSS.
      • Actually its more complicated than that. CSS is part of the Content Protection System Arcitecture. The CSS license does require region codeing, but it also says only approved outputs can be used. In practical terms, that means you cant buy a DVD player with a digital video output, and all analog outputs must be protected with macrovision and CGMS. This is a nice trick; if one device in a system has CPSA-licensed digital input and output it will only interface properly with other CPSA-licensed equipment. In fact, the CSS spec publicly stats its aim is to become completly ubiquidous. If all goes as the CPSA people plan, one day you may be unable to buy an unprotected appliance, and if you do all your existing equipment will refuse to talk to it because its not licensed.

        The same applies to recording as to outputs, so for example a CPSA-compliant DVD recorder will record discs that can only be played on CPSA-compliant equipment.
        • Macrovision is enabled on a disc by disc basis, there's quite a lot of discs that don't trigger the macrovision encoding on the player outputs. They have to pay a fee to Macrovision for every disc that uses it so some publishers don't bother.
    • from the article

      Neither the Bunner nor the Pavlovich case is related to the
      against 2600 magazine, which invoked the Digital Millennium
      Act to prevent the magazine from distributing DeCSS on its W

      wasnt the 2600 case about linking to the source?
      • wasnt the 2600 case about linking to the source?

        Yes, but that case was tried in federal court under the DMCA. This case is being tried in a CA court under the CA trade secret law. Different statutes and different jurisdictions mean that they are not legally related.

        • i was referring more to the article stating that 2600 was "distributing" decss when they were in actuality just "linking" to it-at least that is what i remembered. if the article was incorrect, i was going to drop the author a line.
          • i was referring more to the article stating that 2600 was "distributing" decss when they were in actuality just "linking"



            Initially, 2600 had the DeCSS source on their web site. After the preliminary injuction banning that, they switched to linking to other web sites. After the court ruled against them on that issue, they just listed the URLs of sites that provided DeCSS without actually linking to them.

  • Internet Law (Score:4, Interesting)

    by nuggz ( 69912 ) on Saturday January 04, 2003 @10:53AM (#5013922) Homepage
    Interesting.
    The Austrailian court ruled that posting on a website was publication in all viewable locations.
    The US court that a website is passive and not directed at any particular audience.

    I like the US decision, it makes more sense.
    • We should just take all the laws that actually make sense in the world, make them the base rules. Throw away the others, then burn all the lawyers at the stake.

    • Re:Internet Law (Score:2, Insightful)

      by porkface ( 562081 )
      I don't think it makes more sense from the perspective that it IS actually publishing in those locations. But I do support your "US" standpoint more because enforcement of the other approach means to be lawful, you'd be expected to follow all laws everywhere, which takes "just because you don't know the law doesn't mean you're not held to it" to a new ridiculous level.
    • No the difference in this case is that by having a business presence in Australia you submit to the Jursidiction of the courts. Conversely by having no presence at all in California you do not have to submit to the jurisdiction of the California Courts.
    • I like the US decision, it makes more sense.

      The Australian High Court ruling you're referring to was written with a comment that I paraphrase: "The Court interprets the law to be so that the plaintiff can proceed with the case - but this really makes little sense and someone should go and change the law."

      I like the Australian decision becuase they are not legislating at the bench but are smart enough to criticize their own law when appropriate.

      Hence I like both.

  • All of this wasted time/money.. (Score:4, Insightful)

    by nurb432 ( 527695 ) on Saturday January 04, 2003 @10:56AM (#5013928) Homepage Journal
    All over a guy that wanted to watch some DVD's he bought...

    This whole thing is insane.

  • "We have tried to get Mr. Pavlovich to agree that he would not distribute (the DeCSS software), but he has left it up in the air what he would do and refused to indicate what his intentions are. We'll have to take that into account in deciding how we will proceed," Kessler said." Since when is posting a link to something considered distributing it? Do these lawyers have a smart bone in their entire body..or are they doing a 'scorched earth' legal policy?
    • "We have tried to get Mr. Pavlovich to agree that he would not distribute (the DeCSS software), but he has left it up in the air what he would do and refused to indicate what his intentions are. We'll have to take that into account in deciding how we will proceed," Kessler said.
      Translation: "We threatened Mr. Pavlovich some more, but he wouldn't buckle, so we're holding the threat of more actions over his head."

  • Maybe it's because I'm just dumb ... (Score:4, Interesting)

    by SuperDuG ( 134989 ) <<kt.celce> <ta> <eb>> on Saturday January 04, 2003 @11:36AM (#5014027) Homepage Journal
    ... but you would think that this whole problem could be solved by just making a player for linux and a way to copy DVD's for the consumer ...

    Should the MPAA not be THANKING the opensource community for making their propritary media work on a system that they wish not to support. It's not DeCSS that makes people not buy as many DVD's, it's the price. While DVD players are slowly becoming better and better and selling for less than $60 at the local Wal-Mart it's just a matter of time before the DVD is standard over a VHS player. But even with falling hardware prices it's still nearly $16 - $25 for a new release DVD. This just seems a bit high for a technology that makes it easier, more efficient, and cheaper way of copying, shipping, and packaging. And yet, VHS tapes are still cheaper than DVD's.

    I want this to hit the supreme court and once and for all legalize DeCSS so it can be included with the major distributions. I want to be able to take a DVD play it, rip and re-encode it, and burn it to VCD if I want to. This is simply nothing more than Fair Use and the MPAA is nothing more than a company trying to convolute a situation by confusing people with technicalities.

    All VCR's come with a record button, this doesn't even seem odd to anyone who owns one, as a matter of fact a VCR without one would be shunned from the market. Why then does it seem a DVD is so much different than a VHS? Why, there isn't, they are both being used to store a movie that you bought rights to have a copy of when you walked out the store with it (and a receipt). If you want to take it home and watch it you can, if you want to wear it as an earring you can, or if you want to make a copy of it/watch it on your computer in linux, you can't.

    Wait a minute here, doesn't this mean that the DVD that I own the rights to have a copy of is protected by some unknown law to me? I thought that copyright law states that if I own me a legally purchased copy of a video I can do what I please with it, so long as I don't resell copies of it, distribute copies of it, or play it to large audiences (I'm sure there's more to that FBI warning, but I really don't want to go read it again).

    Does it surprise me that the MPAA is taking the matter to court? No, this is a country where you can sue a fast food chain because you're fat and too dumb to quit eating fast food to make yourself not fat. We're a sue happy society that is accustomed to being in court because that's the american way damn it. Everyone has a right to a fair and impartial trial and we should excercise that right every chance we get, even if that means that someone might actually use a new form of technology to make a shitty copy of a shitty movie and then not go buy an overpriced shitty legal version of their own.

    You know what I want to do, I want to sue the MPAA for $16 for every DVD I own that I have seen so many times I know every scene and every word of. Because I purchased a movie for entertainment and that movie is no longer entertaining to me. Yeah, I think I'll call me a lawyer right now.

    • All VCR's come with a record button, this doesn't even seem odd to anyone who owns one, as a matter of fact a VCR without one would be shunned from the market. Why then does it seem a DVD is so much different than a VHS?
      If you buy a VHS tape, odds are good it will be protected with Macrovision [afterdawn.com], in an attempt to discourage copy. In my mind, Macrovision and CSS serve a similar purpose (like you, I don't like either).
      • It's odd but members of congress when they've spoken about Macrovision believe that it is only used on Rental tapes and they don't consider it authorized for use on retail tapes. However we know that their both the same tape. I'm just not sure why these members have congress have never noticed it on tapes they've bought. I forget the links to these quotes but it came up when the issue preventing home recording of digital TV was being discussed.
    • IIRC, They did try to sue people who created the tape technology. I was too young to understand at the time, so I really don't know the details. I do know that it was a big fuss though.

  • It's not clear by the report... (Score:4, Interesting)

    by rusty0101 ( 565565 ) on Saturday January 04, 2003 @11:38AM (#5014038) Homepage Journal
    ...what the Stay that was vacated actually restricted or allowed. Other reports I have read indicate a bit more strongly that the only thing it prevented was posting DeCSS code to his web site.

    From this report it sounds more like the Stay was against the California Supream Court's decion that there was no case against Pavlovich as he was not subject to the laws of California.

    I seem to recall that this case is a Trade Secrets case, under California Law. As a result if the business or ornanization in question, claiming the trade secret, does not have representation in the states where the various defendents live, or those states do not have equivalent relavent laws protecting trade secrets, I don't think there is any way to take the various people to task for Trade Secret violation.

    IANAL, but I would also suspect that if the people in question are not earning money as a result of making avaialable information on CSS, they may not be subject to trade secret violations any way. The understanding of Trade Secrets that I have is that unless you are legally involved with the company holding the trade secret, (via NDA, Employment history, or other direct involvement) the fact that you are publicising what that company considers to be a trade secret is an indication that it is not a secret in any sense of the word.

    As an example if Evian takes a truck up to a glacier, fills it with ice, takes the truck back to their plant, and melts the ice down to fill bottles with water to sell, that may very well be a trade secret. If you happen to live on the road they use to go to the glacier and back, and you say "Hey, Evian drives trucks to a glacier and back several times a day." and you don't happen to work for Evian or have other legaly binding agreements with them, you are not disclosing a secret, any one else, including reporters, or even corporate spys could discern the same thing.

    In the case of CSS, if the defendents have no participation in the industry, which may include ownership of a dvd player if there is a licence agreement on the outside of the box it came in, then the fact that the DVD-CSS consortium considers what they are publicising to have been secret information is not worth the paper they filed the suit against the defendents with.

    Then again, I could be wrong, and the California Laws may be written so that independently comming up with the same method that someone else considers to be a trade secret, very well may be an actionable event.

    -Rusty

    • Re:It's not clear by the report... (Score:5, Interesting)

      by aufait ( 45237 ) on Saturday January 04, 2003 @12:20PM (#5014161) Homepage
      It's not clear by the report what the Stay that was vacated actually restricted or allowed.

      The DVD CCA obtained a preliminary injuction aginst all defendents that prohibited them from posting DeCSS on their web sites. The CA Supreme Court ruled that CA did not have jurisdiction over Pavlovich. This means that Pavolich can post DeCSS without violating any court orders. O'Conner's stay basically put the CA decision on "temporary hold". Which meant that the CA preliminary injuction still applied to Pavolich until the SCOTUS sorted it out. By lifting the stay, it means that Pavlovich can once again put DeCSS on his web site without violating any court orders.

      if the people in question are not earning money as a result of making avaialable information on CSS, they may not be subject to trade secret violations

      Not necessarily true. There is another recent case, although under a different statute, that ruled that although the person who violated the law did not receive direct compensation, he was still subject to the law since people who received the information would economically benifit.

      unless you are legally involved with the company holding the trade secret, (via NDA, ...the fact that you are publicising what that company considers to be a trade secret is an indication that it is not a secret in any sense of the word.

      Not quite true. If it becomes public knowledge through illegal means, you can be barred from using the information. Let's say an employee violates their NDA and posts Coke's "secret formula" on their web site. Pepsi could be legally barred from using the formula even though they violated no laws when they obtained it. The rational for this is that Pepsi would be profing from an illegal act even though they did not commit it themselves.

      Which brings up the validity of the EULAs. (An issue that even the courts are divided on.) The CCA DVD's position is that the defendents knew or should have known that the only way to create DeCSS was to violate the EULA's prohibition against reverse engineering. If EULAs are not valid contracts, then the CCA DVD's case evoperates.

      • Apparently, there is also an issue over whether a user is authorized to access the information through a purchase of a DVD. No DVD I ever bought has any print on it that said "You agree only to use this DVD in players licensed by the CCA." If that is the case, there is no restriction on reverse-engineering, since I own a license to the data on the DVD.

        That eliminates the "trade secret" part, and all that's left is the DMCA case, which will probably end up going to the Supreme Court anyway.
        • Apparently, there is also an issue over whether a user is authorized to access the information through a purchase of a DVD.



          That would only apply if it was being tried under the DMCA. Copyright law implicitly gives the legal owner of a DVD the "right" to circumvent the CSS since it explicitly gives the legal owner the right to use it without the author's permission. The DMCA makes it illegal to distribute a "circumvention device". It does not necessarily make it illegal to use one.



          Even Judge Kaplan noted the paradox.



          If that is the case, there is no restriction on reverse-engineering, since I own a license to the data on the DVD.



          Only if you can read the data on the DVD without using a commercial DVD player, e.g. you build your own. Otherwise, the CCA-DVD will argue that you violated the EULA of the DVD player.

          • Okay, I'll say that I also never agreed to a license agreement when I bought my DVD player that said I would only use CCA-licensed software to play movies on it. I got a box with a DVD-ROM drive and no documentation. Isn't part of agreeing to a contract a "meeting of the minds?" If they don't include that agreement, then I'm free.
            • I'll say that I also never agreed to a license agreement when I bought my DVD player that said I would only use CCA-licensed software to play movies on it.

              Whether you could legally reverse-engineer the CSS on a linux box, (ignoring the DMCA for the moment), is an interesting; but irrelevent question. The people who originially cracked the CSS did it on a Windows box. According to the DVD-CCA, this was a violation of the NDA clause in the EULA.

      • I have numerous DVDs and at least 2 DVD players, but I don't ever remember accepting (or even seeing) any license agreements.

        It would seem the only real trade secret here is that CSS is incredibly lame, so I can see how they'd be concerned about that getting out.
        • I have numerous DVDs and at least 2 DVD players, but I don't ever remember accepting (or even seeing) any license agreements.

          There is no license with the DVDs themselves. There are only two cases that I can think of where you can use a DVD player without agreeing to a licensing agreement: you bought a stand-alone player or you installed it on a linux box with linux drivers.

          If the former, you are correct. You are free to reverse engineer it. Open the case and break out the logic analyzer and go to it. However, this is not how DeCSS was cracked.

          If the latter, the DVD-CCA will argue that the drivers ultimately came someone who cracked it on a Windows machine thereby violating the NDA. Since it was obtained illegally, you should be barred from using it.

          It would seem the only real trade secret here is that CSS is incredibly lame, so I can see how they'd be concerned about that getting out.

          If you read the court documents, you would see that that is exactly one of the arguements the defendants are using. There are several declerations stating that the plaintiffs knew or should have know that CSS would eventually be cracked. This was not applicable in the 2600 case because Judge Kaplan ruled that the law doesn't only apply to "hard-to-crack" access control devices. However, it should be a factor in a trade secret case.

  • Is it just me... (Score:4, Interesting)

    by nightherper ( 635698 ) on Saturday January 04, 2003 @12:04PM (#5014122) Homepage
    Or did the price of DVDs drop to a reasonable level right before they start really caught on. I know I bought some good popular movies at less than $20 off sale, some being multiple disc special editions.

    Then it seems the price rose again to over $20 ($22 to $25 for a regular movie and sometimes $30 for a special edition.)

    Then it came back down to hang around $20. Was this caused by simple supply and demand or was there another illegal agreement made behind closed doors to keep prices from dropping?

    • Where do you buy them? Best Buy and other stores frequently sell new releases for $15-$20. I remember paying around $20 for the FOTR EE DVD set. I saw barbershop for $15 at circuit city yesterday.
      • When they come out they are usually 14.99-19.99 for new releases on salef or the first week, and then increase about 4-5 dollars and stay up there until the movie ages.

        So, to get them cheap, you've got to buy them when they first come out, or wait about a year or so.
  • ...lifted the temporary stay on the California Supreme Court's ruling that Pavlovich can not be tried in California courts...

    So... they negated a negation of a negation of ability to try the case?

    No wonder lawyers get paid so much.

  • I'm a bit confused about this whole thing. I mean, if people were blocked from putting up DeCSS, shouldn't it have been harder than for me to type apt-get install ogle?

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