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I'm afraid I don't know where to find the treaty texts, but OpenLaw DVD/DeCSS Forum FAQ list has more info. according to this, its uncertant whether or not the various international treaties that prevent regional divisions and so on apply to a technological measure like region coding. However, I can't see why it wouldn't, as technological measures are even harder to bypass...

Of course, many countries have shown a willingness to violate treaties when it benefits them. (The USA's recent anti-missile work is a prime example) But in this case, New Zealand has already outlawed region coding, and players that don't support it are (IIRC) the most popular.

Some of the info on this page seems somewhat out of date or contradicted by slightly more recent sources, but its generally pretty good. The only thing I caught that they ignore is that DeCSS was original written for Windows because Linux and FreeBSD did not yet support the filesystems used on DVDs.

Nothing like starting a message with flamebait!

Home truth time, boys: technical questions are not difficult.

I agree

Read Kaplan's summary of the technical issues in the DeCSS trial (I said read it, not skim a slashdot article about it).

I read the entire transcripts, the entire opinion, and the order. But, it is a bad example to prove your point since the case turns more on legal issues like copyright law than technical issues. The technical issues are not very complicated.

A trained legal brain can master any subject in its salient details.

And a trained technical brain can master any subject in its salient details. The law isn't any more complicated than technical issues.

Two Examples:

The Open DVD shows that non-lawyers can grasp the intricacies of legal concepts of copyright law.

Second, is the fact that I was involved in a pro se case. That case went to the Maryland Court of Special Appeals (we won the appeal) and also had a motion ruled in our favor that depended on the whether collateral estoppal applied to the case. The opposing lawyer was from Maryland's Attorney General Office.

Lawyers are the highest paid employees in the country

Money == Brains ???

Of course, the fact that your profession has a government enforced monopoly doesn't hurt your income.

The Harvard Crimson, that shining example of journalistic prowess, has an article on this situation here:

http://www.thecrimson.harvard.edu/news/article.asp ?ref=8640

In it, University Attorney Allan Ryan is quoted as saying "I don't think there's an obligation to prevent our users from accessing protected material over the Internet." This statement is apparently from an interview conducted last spring.

More real action

OPENLAW. Right now they're working on getting the Sonny Boner act repealed. It looks like an uphill battle, and any brains/publicity/money they recieve will help. I suppose a full /. article may be too much to expect, though I'm submitting it as well.

Anyone was able to submit comments and reply comments - only a few did, but those few pointed out some important points.

--

American copyright is perpetual under a loophole in the Constitution: copyright is supposed to last "for limited times" but nothing in the Constitution takes away Congress's right to extend the terms of those rights retroactively whenever they are about to expire Sonny Bono Act.

I completely agree. That's an entirely different battle which is being faught right now.

And a large fraction of contracts require the authors to sign over all rights to the publisher (often an RIAA/MPAA/etc. member).

That's a problem arising from the fact that the record labels have, up until now, had a stranglehold on the entire music distribution chain. If you wanted to be published, the price was the same no matter which label you went to -- you had to give them your copyrights. Newer internet labels like mp3.com don't demand your copyrights in exchange for being published -- just a percent of the profits. Napster, of course, doesn't demand anything in exchange for publishing your work, should you choose to publish your work that way.

There is more than one case involving DeCSS and the DMCA. I believe this discussion applied to the New York case, called Universal Studios vs. Remeirdes. The defendant has been dropped and replaced with Emmanuel Goldstein (Eric Corley), publisher of 2600.

The New York case turns not on the license agreement but the "trafficking" in "circumvention" "devices" part of the DMCA, which means it is a case in federal district court under copyright law. The district court judge has ruled that Internet hyperlinks to DeCSS code is in violation of this section of the DMCA. That decision is under appeal.

The California case is in a state superior court and does turn on "trade secret" violations alleged by many individuals on the Internet all over the world. It is possible that the DVD-CCA (Copyright Control Authority--it was set up by the movie studios and some hardware makers) will also claim violations of the click-on license agreement that may or may not have come with the Xing software DVD player.

Reverse engineering is a claim by defense in both cases. You are correct that plaintiffs' charges are baseless, for yours and other reasons. Nevertheless, defense costs a lot of money and time and your assistance is appreciated.

You may learn more about the cases at EFF and in the OpenLaw forum at Berkman Center at Harvard Law School.

Connectix was found to have engaged in infringing copying but won on the defense of fair use. Its temporary copies were necessary to gain access to the unprotectable functional elements of the Playstation BIOS, and its resulting emulator was a transformative use of the copy. Judge Kaplan told the defendants in the DeCSS case that fair use was not a defense to circumvention of access control devices. That's still a major point of contention, of course.

But, it's not over yet.

We need to draw a closer parallel between the cases, to argue that the DMCA did not so change the landscape and thus that the reverse engineering and interoperability endorsed by the 9th Circuit must still be permitted. There's lots of great language in the Connectix opinion that claims of copyright infringement can't be used to cut off access to unprotected ideas and functional elements. Can we extend that logic to say that even "access controls" endorsed by the DMCA can't be used to cut off that same unprotected information or fair use of the underlying content? Putting a ROT13 on a work shouldn't cut off fair use.

Join the fight at Openlaw!

Connectix was found to have engaged in infringing copying but won on the defense of fair use. Its temporary copies were necessary to gain access to the unprotectable functional elements of the Playstation BIOS, and its resulting emulator was a transformative use of the copy. Judge Kaplan told the defendants in the DeCSS case that fair use was not a defense to circumvention of access control devices. That's still a major point of contention, of course.

But, it's not over yet.

We need to draw a closer parallel between the cases, to argue that the DMCA did not so change the landscape and thus that the reverse engineering and interoperability endorsed by the 9th Circuit must still be permitted. There's lots of great language in the Connectix opinion that claims of copyright infringement can't be used to cut off access to unprotected ideas and functional elements. Can we extend that logic to say that even "access controls" endorsed by the DMCA can't be used to cut off that same unprotected information or fair use of the underlying content? Putting a ROT13 on a work shouldn't cut off fair use.

Join the fight at Openlaw!

It's too bad the Standard article didn't mention Lawrence Lessig's testimony from a couple months ago that aired the same point about "non-infringing uses" plus two other good points.

someone i know has written a small ncurses-based astrosmash clone that is known to compile on Digital UNIX and Linux (and i'm trying to build it on MacOS X).

source code can be found here.

support a larval hacker! if you grab the source and build astrosmash, send the author an email!

-steve

Some interesting points to note from the paper:

• Of the 37 entrants, 9 used C, 5 used C++, 2 used Perl, 1 used Java and 1 used assembler (total: 18 entries - 50% - used imperative languages);
• 7 entries were eliminated for core dumping etc. (4 C, 1 C++, 2 Perl);
• 9 entries were eliminated for producing semantically incorrect results (4 C, 1 C++, 2 Haskell, 1 OCaml, 1 OLabl);
• the remaining 21 entries were scored according to the quality of the results they produced (ratio of optimized output size to input size). The top 6 are all functional languages, with the top two entries being written in under 24 hours in Haskell. The top 6 entries achieved ratios of 48.3 - 57.7%; the next in line was a C++ entry at 65.6%, followed by a C entry at 75.7%.
• Only 6 out of the 18 imperative language entries worked - that's a 33% success rate.
• Only 4 out of the 19 imperative languages failed - that's a 79% success rate.

Of course, after that it was all very subjective. The overall winner was the best optimizer, ran to a mere 376 LOC (average entry was 1500 LOC), and the programmer claims to have spent only 6-8 hours on the task. The second place winner was the second best optimizer. The remaining winner was the third best optimizer.

Ralph

should have been this link

Your accusations of bias are completely unfounded. The paper discussing the results of the '99 contest clearly states the objective criteria used to determine the winners. Entries were judged first on code correctness - each entry had to correctly process all of the test samples. The prize then went to the entry that produced the most highly optimized output. In other words, the prize went to the the entry that objectively produced the most correct and efficient code.

The winners of the '98 contest were simply the best players of the game. What could be more objective? As far as the Judges' Prize is concerned, the contest announcement very clearly states:

Finally, the Judges' Prize is to be awarded, not on the basis of the competition, but solely at the whim and discretion of the judges. Novel algorithms, interesting languages, beautiful code, arresting user interfaces, use of parallelism -- these things may well count for something in the judges' eyes.

This is clearly a subjective decision, but the contest organizers make it very plain that this is the case.

You could perhaps argue that the choice of problems that involve complex translation or problem-solving show a bias towards functional languages, but the fact of the matter is that you'd have a hard time coming up with a good high-level programming problem that wasn't better attacked with a functional language. The winners give much more lucid accounts of the advantage of functional languages for complex problem-solving than I could hope to. They're worth reading.

Another interesting recent study explored the productivity advantages of lisp over C/C++ or java. Their conclusions are also very interesting.

Although the precise task chosen will not be revealed until the contest begins, algorithmic cleverness matters. Performance may matter. Programming languages that help programmers to build complex systems quickly may allow contestants to attempt particularly sophisticated implementations in the 72 hours allotted for programming.

So what kind of programs do you think are going to win a contest called the International Conference on Functional Programming Contest? Hmmmn, maybe programs in functional languages? Let's look at past years' results: From 1999:

The Judges are sure that the choice of language played a role in this team's ability to produce a top entry in a mere 24 hours, and they are pleased to pronounce that Haskell is a fine programming tool for many applications.

There is no doubt in the Judges' minds that

Objective CAML is the programming tool of choice for discriminating hackers.

We have no hesitation in recommending Cilk as "the programming language of choice for discriminating hackers,"

The competition for second prize was much fiercer, and, in fact, the second round of games among the six finalists produced a three-way tie for second place, between Brad Kuszmaul's Alpha Beta Soupa ST entry (written in C), Lennart Augusston's la entry (written in C), and the ENS Camlist team's OCaml entry.

The contest judges resolved the tie by playing a final round of games between the three teams vying for second place -- and the clear winner was the ENS Camlist team, who handily won all four of their tie-breaking games (defeating the other two entries both as X and as O).

We note that this OCaml entry beat out 23 C and C entries, many of these being highly tuned programs produced by extremely competent programmers skilled in game-playing algorithms. This is a strong statement as to the performance of compiled OCaml software.

Of course, they take some extra time to pile more praise on functional languages in the third-place winner, and on the remaining entry:

It would only be stating the obvious to say that OCaml is "a fine language for many programming tasks" -- including some not traditionally held to be the domain of functional programming.

Without a doubt, "a bunch of extremely cool hackers" -- and an extremely cool programming language.

So there you have it. I think these comments show a strong enough bias toward functional programming, and against C in particular, that I would not trust the judges. I am not saying that FP is necessary worse than other programming paradigms or languages; in fact, I happen to think that functional programming is a cool idea. Tools like OCaml may in fact be superior to C (and my personal favorite, Perl). However, I don't see this contest as anything approaching a fair test of whether that is true. I definitely wouldn't waste my efforts entering this contest with anything but an FP language-- which hesitance, of course, perpetuates the bias of the contest.

Judge for yourself, but I say this is a self- congratulation-fest for functional programmers and a dubious test of the true value of FP.

Vovida, OS VoIP
Beer recipe: free! #Source
Cold pints: $2 #Product

"Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal?" United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)

There are in fact jobs in the field of computer history. Although it is not a common major, my school (harvard) does have a program in, and professors of, history of science. One of the possible focuses in this program is History of Technology. Computers obviously play a large part in this.

In addition, I can't offer too much in the way of specifics, but many government institutions in particular need to be sure that they will be able to read records created with outdated technology (and records created with today's technology when it becomes obsolete). You might look into that possibility.

cheers split horizon

"For the purposes of First Amendment analysis, this court finds that source code is speech."

Go read Part III of Kaplan's opinion. Kaplan agrees that computer code serves an expressive function as well as other functions -- that is, code is speech, and it's other things too.

(Simplifying greatly here:)

The Supreme Court has said that some laws which prohibit/punish things that are both speech and non-speech are constitutionally OK. Burning a draft card during the Vietnam War was certainly a form of speech. But in O'Brien, the Court held that the law against destroying draft cards is OK because it serves the significant purpose of making the draft system work, and the law is not aimed at punishing speech (it's "content neutral").

The anti-flag burning laws, on the other hand, are not OK because they are not content-neutral. It's OK, for example, to burn the Canadian flag, but not the American flag.

Kaplan holds that the DMCA is more like the no-destroying-draft-cards law than the anti-flag burning law, and therefore it's constitutionally OK. You might disagree with this part of Kaplan's analysis, but you can't say that "code is speech therefore we win." (If you disagree, explain why laws against passing bad checks could ever be constitutional.)

...is it that hard to conceptualize of a machine of some sort that could utilize the very flow of energy across in in either direction? if such a device was sensitive enough, you could conceivably get power any time, as no two temperatures are ever exactly the same.

This sounds like a version of Maxwell's demon, who, like Dracula, gets killed by a brave scientist every time someone tries to resurrect him.

As someone who has been a practicing First Amendment lawyer for a very long time (22 years), though not as long as you (this is directed to Martin Garbus), I was, at first, highly skeptical of the idea that a group of mostly programmers could make any meaningful contribution to an actual court case.

But as time went on, the discussions became more focused, my view on that, borne of my own traditional way of doing legal briefs, came to change considerably. I saw arguments being developed (and trashed, where appropriate) that likely would not have happened but for the massive input into that list. Your colleague Ed Hernstadt posted there occasionally, my understanding is that your team was getting good information from there, and even one of your expert witnesses (Ole Craig) seems to have come to your attention as a result of his contributions to that list.

So my question, primarily for Martin, is how much did you really gain from that list? Was the Openlaw/DVD forum really of meaningful help to your efforts, or, at least in the context of providing specific help to the trial lawyers, was it a waste of time for those who participated?

I know, of course, that Kaplan ruled against the defense today, but I'm really looking at the broader implications of something like that forum. Do you see it as something which, in the appropriate circumstances, can have real value to a case?

This is what happened: Aristotelian physics required that all motions in the heavens to be circular, so some astronomers introduced epicycles to account for retrograde motion. Ptolemy incorporated this in his magnificient theory. Now, the story goes:

The system was finally owerthrown as a result of the complexity which arose when an ever-increasing number of superimposed circles had to be postulated in order to represent the ever-multiplying inequalities in the planetary motions revealed by observational progress

(taken from de Vaucouleurs, Gerard (1957)), it's just that this is wrong! First, where is the evidence that there was any significant observational progress. Have a good look, and you'll see that there wasn't any observational progress, so they had no reason whatsoever to introduce additional epicycles. The observational progress didn't come until Tycho Brahe, after Copernicus.

Now, the whole thing culminated in 1963, Robert Horace Baker wrote an article in the Encyclopedia Britannica stating that 40 to 60 epicycles were added to each planet, which is absurd, they would have needed a Beowulf cluster to compute the positions of the planets if they did that... ;-) At least with the math they had available.

Baker further said that Alfonso X stated that if he had been there at creation, he would have given the good lord a few hints. Alfonse X computed (well, as a patron) the Alfonsine Tables, that astronomers needed to determine the expected positions of the planets.

Owen Gingerich bashed the myth in 1968 by recomputing the Alfonsine Tables, and found that they were based on a pure Ptolemaic model with only minor corrections to the parameters used by Ptolemy.

I have been trying to figure out why this myth came to be and how it propagated. I haven't had time to do much research on it lately, and I won't tire you with my stuff, but I have an old essay about it for those interested.

Now, the myth has been uncritically accepted by a number of canons, most notably Thomas Kuhn. I have read a couple of his books, and I'm a bit uncertain how important it is for his philosophy, but it is clearly motivating him to go in the direction he does. Gingerich told me on the History of Astronomy Discussion List that Kuhn was very embarrased when he told him about it.

It is very important to note, IMHO, that Ptolemy went away from Aristotelian physics a long way, and that allready in the 10th century (i.e. before Aristotle was made compatible with Christianity by Thomas Aquinas), the criticism against him gained strength. Ptolemy had to introduce several concepts, among them, the equant. The epicycle itself is not consistent with Aristotelian physics, because the circular motion should be around the centre of the universe, namely the earth. Now, could it be that Copernicus was mainly motivated by lack of proper physics as opposed to merely mathematical constructs?

Finally, as others has mentioned, Copernican cosmology had no advantage over Ptolemaic cosmology in terms of accuracy, also as shown by Owen Gingerich. The breakthrough in accuracy came with Kepler.

The Kill Your TV Website:

http://othello.localaccess.com/hardebeck/

No this is serious. He claims that Sesame Street may teach your kid to recognize letters and numbers, but it shortens their attention span.

It happens that, when I was a kid, I stopped watching television when my sister left for college. I had never really actively watched TV before, but would sit passively while she changed the channels. With my sister gone, I would at first just sit in silence in the empty house. But I started listening to music which, unlike TV, allows you to devote your attention to other things while you listen.

I read a lot, ground telescope mirrors, acted in the high school theater and eventually became the set director, started college at 16 while still attending high school, scored 890 out of a possible 900 on the SAT Math II achievement test and was accepted into CalTech, where I published in the astrophysical journal and did research on the 200" and 60" telescopes.

I still don't watch TV, and have a successful software consulting business.

Mike

Note - you can find refs to my papers in the "Publications" section of my resume. Abstracts are available online. I didn't say it in my original letter but the work that was published I did while employed as a research assistant the summer after my freshman year.

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The Kill Your TV Website:

http://othello.localaccess.com/hardebeck/

No this is serious. He claims that Sesame Street may teach your kid to recognize letters and numbers, but it shortens their attention span.

It happens that, when I was a kid, I stopped watching television when my sister left for college. I had never really actively watched TV before, but would sit passively while she changed the channels. With my sister gone, I would at first just sit in silence in the empty house. But I started listening to music which, unlike TV, allows you to devote your attention to other things while you listen.

I read a lot, ground telescope mirrors, acted in the high school theater and eventually became the set director, started college at 16 while still attending high school, scored 890 out of a possible 900 on the SAT Math II achievement test and was accepted into CalTech, where I published in the astrophysical journal and did research on the 200" and 60" telescopes.

I still don't watch TV, and have a successful software consulting business.

Mike

Note - you can find refs to my papers in the "Publications" section of my resume. Abstracts are available online. I didn't say it in my original letter but the work that was published I did while employed as a research assistant the summer after my freshman year.

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The Kill Your TV Website:

http://othello.localaccess.com/hardebeck/

No this is serious. He claims that Sesame Street may teach your kid to recognize letters and numbers, but it shortens their attention span.

It happens that, when I was a kid, I stopped watching television when my sister left for college. I had never really actively watched TV before, but would sit passively while she changed the channels. With my sister gone, I would at first just sit in silence in the empty house. But I started listening to music which, unlike TV, allows you to devote your attention to other things while you listen.

I read a lot, ground telescope mirrors, acted in the high school theater and eventually became the set director, started college at 16 while still attending high school, scored 890 out of a possible 900 on the SAT Math II achievement test and was accepted into CalTech, where I published in the astrophysical journal and did research on the 200" and 60" telescopes.

I still don't watch TV, and have a successful software consulting business.

Mike

Note - you can find refs to my papers in the "Publications" section of my resume. Abstracts are available online. I didn't say it in my original letter but the work that was published I did while employed as a research assistant the summer after my freshman year.

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The Kill Your TV Website:

http://othello.localaccess.com/hardebeck/

No this is serious. He claims that Sesame Street may teach your kid to recognize letters and numbers, but it shortens their attention span.

It happens that, when I was a kid, I stopped watching television when my sister left for college. I had never really actively watched TV before, but would sit passively while she changed the channels. With my sister gone, I would at first just sit in silence in the empty house. But I started listening to music which, unlike TV, allows you to devote your attention to other things while you listen.

I read a lot, ground telescope mirrors, acted in the high school theater and eventually became the set director, started college at 16 while still attending high school, scored 890 out of a possible 900 on the SAT Math II achievement test and was accepted into CalTech, where I published in the astrophysical journal and did research on the 200" and 60" telescopes.

I still don't watch TV, and have a successful software consulting business.

Mike

Note - you can find refs to my papers in the "Publications" section of my resume. Abstracts are available online. I didn't say it in my original letter but the work that was published I did while employed as a research assistant the summer after my freshman year.

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we instead get Sonny Bono copyright extensions

Well, I am fighting that battle too, with a lawsuit against the Copyright Term Extension Act. See the OpenLaw site and add your comments.

It is sad, but maybe we can use some judo on the system to turn it to good ends.

Some old software has been published for free. For example, Visicalc, Borland C, even Microsoft Word 5. But what we need is to have the source code go back into the public domain so the public can benefit from it. Then the ideas can be reworked by the next generation and better products developed from it.

So we need an incentive to accomplish this. Simply publishing or stealing the object code is not enough. Of course, it would have been better if the Copyright Office had required registration and deposit of the entire source code, but it hasn't. So we need to develop some private institutions that can perform the way the Framers intended, and reinstitute the idea of copyright as a way to produce more for the public good.

I am honored by the nomination by the ICANN board to the at-large membership position for North America, especially because I have been a critic of the ICANN process. I do not believe it is appropriate, however, to "campaign" for the board election until after the self-nominees have been selected. I will therefore not answer questions or give interviews about ICANN until that part of the nominating process is complete. I am sorry for any difficulty this might create.

The definition of circumvention reveals that to circumvent, one must be acting without the authority of the copyright holder. Any statement that a buyer does not have the authority to decrypt, because the DMCA prohibits decryption without authority, is a circular argument and thus invalid.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

But you cannot shut down all pizza parlors because they can be used for money laundering.

Perhaps you meant to construct an argument instead of introducing a logical fallacy.

He'll rule that 2600 violated no laws by posting the code under freedom of the press and speech, but that any use of code that gets around CSS is a violation of the law, therefore any use of DeCSS is actionable, including putting chunks of it in any LIVID software.

Sorry to comment yet again on this topic, but I was reading this post on the OpenLaw forum which says that DeCSS is not a circumvention device after all!!

As I understand it, a DVD contains 2 pieces of information: the actual movie, or video, which is encrypted with CSS and needs a key to decrypt. The key needed for is called the "title key" which is also stored on the DVD, and encrypted differently. To access the title key, one needs a "player key" such as the one in the Xing player.

If you recall the wording of the DMCA, it outlaws anything that circumvents effective measures to controll access to a work. But what DeCSS does is it circumvents the encryption on the title key, bypassing the need for a player key, and then uses the title key to decrypt the movie. Therefore, it is not circumventing measures to control access to the work, but measures to control access to the title key. Note how this is not against the DMCA, because it is preposterous to claim copyright over a particular large number... and the key itself is on the DVD, and signals the authorization of the copyright holder to access the work!!!

Unfortunately for us, I've read most of the transcripts of the case and I don't think this point came out in any of the evidence. It might be useful on appeal, if nothing else.

You can advise the Copyright Office: submit a comment in the upcoming discussion of first sale and archival copying and the DMCA. The EFF has a copy of the Request for Comments. Comments are due this Friday at 5 p.m.

The first sale doctrine (17 U.S.C. s 109) states that a copyright owner cannot prohibit resale of a copy of a work he has sold, and has traditionally been read to imply that copyright owners cannot control the uses of those sold copies. Does the Digital Millennium Copyright Act give publishers persistent, after-sale control of their works, or should first sale still limit that power?

FWIW, I argue that the loss of control on first sale is an integral part of the constitutional copyright balance that that DMCA cannot abrogate. In exchange for copyright protection on published works, the copyright holder must give public access. (And yes, if they're not willing to give us that access in digital media, studios should keep publishing in analog.)

Join us at Openlaw/DVD for more discussion of the DeCSS cases and these broader copyright issues.

I don't know all the costs, someone who works in the recording industry might better be able to name them, but it's unfair to say the record companies make CDs for 50 cents and sell them for $15.

OK. I'll bite. According to this report (I know it's ZDNet... ugh), the record labels only pay production and promotional costs for established acts. According to the same article, production costs for 100,000 copies of a CD are around $93,000 (the cost per copy goes down as the number of copies goes up). The record companies aren't losing a lot of money promoting lesser known bands, since those bands have to repay those costs to the record companies. And according to this report at Harvard Law School, artists don't actually start to make any money until 500,000 units have been sold.

So don't come crying to me about all the extra costs the record labels have to bear promoting lesser-known bands. It's just not true. 3000-4000% was probably a bit of an exaggeration, but 1800% is not (at the $8-10 sell price).

---

Touretzky's testimony closely follows his declaration (for which Griff helpfully provided this link), so if you've read one, you can skip the other.

Judge Kaplan remarks at the conclusion of Touretzky's testimony:

"Well, Dr. Teretsky, let me just tell you that this was illuminating and important. I was hoping we were going to hear something like this through the whole trial. I appreciate your having come."

I found a fairly complete set on the openlaw page - they've got all of the trial testimony (including the last day's), as well as links to news stories covering the trial.

I would refer you to David Touretskys declaration here .

I summarised it (probably quite badly) fruther up this page.

I ask if you consider architecture to be an art, or a science? After all, it is just a design for a building governed by the laws of gravity, etc.

As with almost anything, there are many ways to write a computer program - some are merely functional, other are graceful and, I would say, expressive.

You could look at this declaration by Touretsky. Personally I think this is the most powerful argument in the entire case.

To paraphrase, the question he asks is "Where do you draw the line?"

Is some English text describing an algorithm protected under the 1st amendment?
What about the same text, but annotated in some well defined programming language for which there is no compiler?
What if it was annotated with C code?
The C code all by itself (ready to be compiled)?
Object code?
Binary executables?
At what point is it no longer 'speech'?

Griff

I really do think there is a connection between what is going on in the MPAA-2600 case and Eldred v Reno.

Disney and Warner were big backers of both bills in 1998 and gave lots of campaign contributions to everyone they could think of, both Democrats and Republicans.

I believe they were very scared of the Internet and the new freedom of everyone to publish. They wanted to be able to control the Internet and keep it safe for e-commerce and pay-TV and their profit stream using a business model of licensing and staged releases.

In each case, I believe Congress went too far. They didn't realize what they were up against--us! Not only do we understand the Constitution and our rights, we are also the citizens and consumers. When we get mad, they eventually suffer and have to back down.

We can fight in the courts. But I don't think a boycott would be sufficient. What we need to do is encourage all citizens to publish their ideas themselves instead of relying on the television networks or Hollywood or Microsoft. We have to help them with the tools and access. We don't need lots of money to do this because the costs of publishing are so low now.

Turn off the television. Buy only used books and not from Amazon. Use your computer to write programs and produce your own art and share it. Help Project Gutenberg and other programs to share information.

Sooner or later the big companies will realize the only way they can respond is by providing the customer with a good product at a fair price. They can't lock up ideas like DeCSS forever. But they are desperately trying.

You can help support my case to overturn the Sonny Bono Copyright Term Extension Act with your own ideas. Visit http://eon.law.harvard.edu/eldredvreno and add your own ideas to the Open Law discussion. Written briefs in the appeal are now being filed and oral arguments will be in October in Washington, D.C. And, please visit my site and read anything you like for free. You own most of it--in the public domain for as long as we have it.

You're welcome to send other relevant materials or links to openlaw@eon.law.harvard.edu (and browse the archive for more).

You're welcome to send other relevant materials or links to openlaw@eon.law.harvard.edu (and browse the archive for more).

The truth is, copyright was limited in effectiveness to the time in our history between the invention of mass publishing and the time that mass publishing became so cheap anybody could do it.

He's right, you know. Copyright was created in response to the invention of the printing press. The English government (a monarchy at the time) needed a way to control what was printed. Censorship was the original intent of copyright. Later, in 1710 with the Statute of Anne it was changed to reflect new goals, namely that of ensuring that the publishing industry could prosper while not giving them complete or perpetual control.

The statute was challenged later, several times in fact, by the publishers. They hoped to regain the perpetual ownership rights that they had before the Statute of Anne came along. They failed in every attempt. The US used the Statute of Anne as a guideline for our own copyright as it's described in the Constitution and as it was originally made into law in 1790. It granted a 14 year term, renewable for 14 more years, just as the Statute of Anne granted English publishers and authors.

Since copyright originally came about because mass copying became much easier, so should a new method be created now. The problem, as always, is still the publishers. They are still pursuing the goal of complete and perpetual control. This is not in the artist's interest, and it is certainly not in the interests of the vast majority of the citizens of this country. There is supposed to be a balance struck between providing the incentive for creators to create and paying back the people of this country for their granting of a limited monopoly to the creator by adding the work to the public domain once its term has expired. I believe that that balance was completely destroyed about 24 years ago with the Copyright Act of 1976 which extended the copyright term to life+50. That meant that copyrighted materials would probably not fall into the public domain until at least a few generations after they were created. A minimum of 50 years, but conceivably much longer. This throws the whole arrangement out of whack and (through the publishing industry's whining of "It's for the poor authors.") has created a sense in the American public that authors weren't being rewarded for their work, when, in fact, prior to the extension, author's were protected for up to 56 years. That's a very long time to have a monopoly on the publishing of a creative work. The term has since been extended to life+70 years, or 95 years for "works for hire," (i.e. anything created by a corporation). I suppose the 95 years would apply to most music now since the record industry got music created while under contract to a record company declared a "work for hire."

Read the background material in the Eldred v. Reno case to get a better explanation than I could provide here.

http://cyber.law.harvard.edu/eldredvreno/

How hard is it to make that a link? Same page as a link. And the lines occur on page 652. (Insert rant about no anchors in the text here.)

The thing is, they won't be prosecuting anyone for breaking an ex post facto law. Since they extended the term before the original term ran out, the copyrighted works will always be covered by current law. That's not the reason this is so disgusting. The reason is that it doesn't follow the intentions of copyright, which are:

"To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

If the works are already created, then extending their copyright term cannot provide anymore incentive to create them. The authors created the works under the copyright laws at the time, which obviously provided sufficient incentive. To extend the copyright term on them does not serve any useful purpose to the public, and therefore should not have been done. Additionally, Congress provided no evidence or justification for extending the copyright term. Why was it needed? Do they have evidence that the current laws weren't providing enough incentive? The US has long been the leading creator of copyrighted works. I think Congress would have had a very difficult time justifying their law with the intent of copyright as written in the Constitution. So they just decided to claim that it was done in order to harmonize US copyright law with the international community. This doesn't fly either. They aren't allowed to do whatever they want just because other countries are doing it. I'd love to see the justifications for ANY of the copyright extensions that have become law.

If anyone is interested, here's a couple links:

http://cyber.law.harvard.edu/eldredvreno/

http://eon.law.harvard.edu/openlaw/ eldredvreno/