Slashdot Mirror

It's not on the US District Court's home page yet, although I expect it will be sometime (but when?): http://www.cand.uscourts.gov/

I found a public listing for the office of Judge Patel. I do not know what the rules are for contacting a district judge. I also do not know the rules of advocacy toward judges. However, it is a public listing. Maybe if her office was flooded with advocacy concerns, she might consider them. I could be wrong. Phone #: 415-522-3140 (San Francisco). Taken from link: http://www.cand.uscourts.gov/8825666d006460cb/f382 7768 4916d5df882565cc00758957/993f06bc45f 9caf5882566730071327a?OpenDocument

-I meant to say "post-hearing replies"

-Take a close look at the comments submitted. I encourage everyone to even just skim them, if they have the time. There were a total of 28.

-9 were clearly against any exemptions to the anti-circumvention provision, all submitted by big media (one co-signed by ASCAP, Association of American University Presses [ironically in direct opposition with the comments of the Association of American Universities, The American Council on Education, and the National Association of State Universities and Land-Grant Colleges], the BSA, The McGraw-Hill Companies, the MPAA, and the RIAA.

-One has an informative illustration of the flawed nature of CSS and how it inhibits non-infringing use of copyrighted materials.

-Most of the arguments against exemption lean on the fact that nobody "adequately" testified to current hinderance of fair use... totally ignoring the arguments of CSS and misdirecting the purpose of the rulemaking (to prevent hinderance).

-I didn't notice a single comment by a self-proclaimed artist. You know, the people that copyright is supposed to protect? Sure, there were a few clearinghouses that represent the copyright interests of artists--but that's a bit disconnected from what the artist actually wants. After all, these clearinghouses have their own financial stake in the DMCA, separate from the interests of the artists they represent. Of course, let's not forget that we are all protected by copyright, self-proclaimed artist or not. Yet the overwhelming majority of us copyright holders are for exemptions to 1201(a)! Why is that?

-On to the trial: The final depositions are wrapping up. The judge has consolidated the motion to expand the preliminary injunction, as well as the motion to vacate the PI, with the trial itself. He moved the trial date up because of the first amendment implications of banning the distribution of DeCSS on a 1201(a) case, rather than on a pure copyright basis, among various other reasons.

-The DVD-discuss list is preparing an amicus brief... hopefully it will address basic flaws in the MPAAs pursuit of the lawsuit over circumvention, my favorite being that circumvention does not exist under 1201 if the copyright owner's authorization scheme to access the material is not well defined. There are many more, so review the archive, take note in particular of the proposed outlines for the brief, and see exactly why the MPAA will lose before it actually happens. The list is generally the best place to catch wind of current developments, as most filings and transcripts don't make it to wide distribution and those that do might just make it to 2600 and cryptome.

-Don't forget to donate to the EFF (I haven't sent my check either, yet), because they're footing the bill for this.

A of course NAL, bit my understanding of this decision is that it was just upholding an injunction. The full trial on all the information hasn't been heard yet, this is just a ruling on a motion about how things will remain during a trial.

Although, my understanding of injunctions was that they were supposed to be quick by their nature and purpose, and not drag on for years. I didn't even know that they could be appealed...

While I've only begun my research, here are a few resources that you -- and others should probably look into.

(It takes me a while to dig and digest info before I reply. I wonder how many people come and go before I can post)

The history of the ACLU challenge to COPA, including the filings, injunctions and hearings.

The Appellee brief (the basis of appeal) in the recently decided case, so you can see the issues that were specifically raised

And of course, no discussion can be complete without COPA itself

Well, we simply can't conduct this thread without a link to the actual ruling at the DoJ site. (PDF only)

Here's the actual text, as sloppily transcribed by ol' stumblefingers (me). Beware of possible typos.

[BTW, is 'general public importance sufficient to meet the standards of 15 USC 29(b) -- gotta check!]


Upon consideration of the joint motion of the plaintiffs for certification pursuant to 15 USC 29(b), and the opposition of Microsoft thereto, it is, this 20th day of June, 2000.

ORDERED, that the Joint motion by the plaintiffs for certification pursuant to 15 USC 29(b) is granted and that this court hereby certifies that immediate consideration by the Supreme court of the appeal taken herein is of general public importance in the administration of justice' and it is

FURTHER ORDERED, that the Finalk Judgement of June 7, 2000, is stayed in its entirety until the appeal therefrom is heared and decided, unless the stay is earlier vacated by an appellate court.

(signed)

Apparently the three circuit Court judges who disqualified themselves did so because they were, before becoming judges, employed by the U.S. Department of Justice.

Looking over the judges' bios at http://www.cadc.uscou rts.gov/court_offices/judges/judges.html one might suspect that those missing judges might be more understanding of the antitrust issues and the government's case, than the others--but who knows.

That still doesn't explain why the Circuit Court so eagerly took the case, even before there was a formal appeal--the brief Circuit Court statement refers only to the great importance of the case--and that makes one wonder if the Supreme Court might wish to take it first.

Apparently the three circuit Court judges who disqualified themselves did so because they were, before becoming judges, employed by the U.S. Department of Justice.

Looking over the judges' bios at http://www.cadc.uscou rts.gov/court_offices/judges/judges.html one might suspect that those missing judges might be more understanding of the antitrust issues and the government's case, than the others--but who knows.

That still doesn't explain why the Circuit Court so eagerly took the case, even before there was a formal appeal--the brief Circuit Court statement refers only to the great importance of the case--and that makes one wonder if the Supreme Court might wish to take it first.

Ok now we got that out of the way. I read the opinion in the BlueOval case (it's here if you are interested - word perfect format not acrobat as despite the instructions otherwise).

While I agree that a lot of it is not related I think the key issue, the 1st ammendment, is applicable. Assuming that the publisher did not have a direct contract with Adobe (if he did all bets are off) then there can be no legitimate argument that allows a commercial entity to chill free speach. Letting adobe previal in this would have massivly chilling effect on large sections of the press and on investigative journalism in particular. As such on the face of it it's unconstitutional (I think P&G vs Bankers Trust is particularly applicable here)

as per the court order. So this means that the applications group will have to use the same API's and tools that the rest of us use. Proprietary extensions will be hard to do, because the application group will not be able to leverage them. Of course, with MS's trustworthiness, there probably will be all sorts of behind the doors collusion going on.



b. After Implementation of the Plan and throughout the term of this Final Judgment, the Operating Systems Business and the Applications Business shall be prohibited from:

i. merging or otherwise recombining, or entering into any joint venture with one another;

ii. entering into any Agreement with one another under which one of the Businesses develops, sells, licenses for sale or distribution, or distributes products or services (other than the technologies referred to in the following sentence) developed, sold, licensed, or distributed by the other Business;

iii. providing to the other any APIs, Technical Information, Communications Interfaces, or technical information that is not simultaneously published, disclosed, or made readily available to ISVs, IHVs, and OEMs; and

iv. licensing, selling or otherwise providing to the other Business any product or service on terms more favorable than those available to any similarly situated third party.

Section 2.b.ii shall not prohibit the Operating Systems Business and the Applications Business from licensing technologies (other than Middleware Products) to each other for use in each others' products or services provided that such technology (i) is not and has not been separately sold, licensed, or offered as a product, and (ii) is licensed on terms that are otherwise consistent with this Final Judgment.

Some highlights:

From the Final Judgement

1) Split up into two companies is based on what the two portions of the company were doing as of Apr 27, 2000. No saying "Hey, Office is part of the OS"

2) The 2 NewCo. may not recombine, enter into Joint Ventures, provide APIs to each other that are not available to other ISVs.. or basically collude.

3) The OS company cannot know OEMs for supporting other OS's, OEM's can change the boot up sequence.

4) Microsoft shall disclose to ISVs, IHVs, and OEMs in a Timely Manner, in whatever media Microsoft disseminates such information to its own personnel, all APIs

5) Microsoft shall not take any action that it knows will interfere with or degrade the performance of any non-Microsoft Middleware when interoperating with any Windows Operating System Product

6) MS has to create an internal position to monitor antitrust compliance within the company (boy, there's a sucky job...)

Very interesting stuff.... nothing too surprising though...

According to an order Kaplan signed today, the parties and interested members of the press will be in court on June 6 to argue this one.

Openlaw will have as much detail as we can get.

The opinion in Sony v. Bleem, No. 99-17137 (9th Cir. 2000), is available online at the
Ninth Circuit Court of Appeals web site

The opinion in Sony v. Bleem, No. 99-17137 (9th Cir. 2000), is available online at the
Ninth Circuit Court of Appeals web site

Because Napster does not transmit, route, or provide connections through its system, it has failed to demonstrate that it qualifies for the 512(a) safe harbor.

the sale of copying equipment, like the sale of other articles of
commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."

A subtle but important point. Although the article suggested that:

The US District Court in San Fransico has ruled that Napster is not just a "mere conduit" for files, but that it is actually liable for material transfered by the program.

the truth is rather more interesting. The actual opinion makes clear that the ruling made no determination of liability at all.

This opinion merely denied the defendant's motion for Summary Judgment -- it granted no decision in favor of the plaintiffs, who must still prove up and prevail in their case of infringement. Summary Judgment is a means by which a party can short-cut a trial on an issue for which there is no genuine question of material fact. By deciding that the question of liability must go to trial (over the DMCA issue), the judge most certainly did not make a finding of liability. In fact, S.J. motions are rarely granted.

More important, it is significant to note that the issue here was not liability itself, but rather whether the defendant fell under a safe harbor (get out of jail free card) set forth in a bill intended to protect ISPs. The fact that the safe harbor doesn't apply still means that the plaintiff must prove his case, get past the common law "Netcom" standard, and then the Supreme Court "Sony Betamax" case.

Without having reviewed the opinion carefully, this much is certain -- the opinion did not make any finding that the defendant's are liable. Only that the game remains afoot.

The upshot is that Napster may have hung itself by its failure to police users of its system but a more careful service provider might survive a similar lawsuit and Napster may yet prevail.

I'm in fact encouraging the judge to do this, or another "compromise" solution like mp3.com handing over a portion of its advertising revenue for the site. The judge can be contacted here:
Hon. Jed S. RAKOFF
United States District Judge
United States Courthouse
500 Pearl Street, Room 1340
New York, New York 10007-1312
(212) 805-0401
Deputy (212) 805-0129
Courtroom 14B

I'm not sure if it will do any good, of course, but they say it never hurt to snail mail Congress... By the way, the RIAA can also be written to here:
The Recording Industry Association of America, Inc.
1330 Connecticut Ave., NW
Suite 300
Washington, DC 20036

• Judge Jed Rakoff of U.S. District Court for the Sourthern District of New York issued a terse order holding MP3.com "liable for copyright infringement."

The only thing I was able to find was the website for the court mentioned above. (click here) But I couldn't find anything more. It's too bad I don't live in New York or I'd get a copy of the thing and type it up myself...
--

http://www.dcd.uscourts.gov/ microsoft-conclusions.html

You can read the actual Conclusions of Law and Final Order here.

Close, and the difference favors re-implementaion.

Copyright only covers "creative expression" and specifically does not cover functional ideas. The 9th Circuit Court, in Sony v. Connectix, said:
Copyright protection does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery" embodied in the copyrighted work.
This case is also pretty relevant to the whole Mattel snafu; in a nutshell, Connectix reverse-engineered a Sony Playstation, built and sold an emulator and Sony sued on copyright infringement grounds for the reverse-engineering - Sony massively lost the most recent round, their only chance to stop the emulator is to take it to the Supreme Court, and that's a mighty slim chance...

But back to your question, the difference is is that you can pretty much re-write functional components using the original as a blue print (reverse-engineering CPHACK), provided you're clever enough to only copy functional elements and avoid copying "creative expression". However, the threshhold for something to be a "creative expression" is amazingly low, so from the standpoint of being safe, it would be better to do as you suggest and re-implement from the text description of the method.
IANAL and this is not legal advice.

BTW, that's Courtroom #19, 7th floor. Here are directions to the courthouse.

http://www.mad.uscourts.gov

The address is:

United States Courthouse
1 Courthouse Way - Suite 2300
Boston, MA

Time: Monday, 2 pm

Since Connectix won, Im surprised that no one has taken notice of the fact that reverse engineering was found legal. Now if only we could convince anouther court case (cough, cough) of that and all will be well.

SONY V CONNECTIX
Case Number: 99-15852
Date Filed: 02/10/00

The arguments in the court's opinion overturning the ruling are key.

After reading the ninth court ruling related to the SONY V. CONNECTIX case,
it seems to be that reverse engineering a product to determine how it operates is
considered 'fair use'.
So why wouldn't this include the encryption used in the DeCSS case?
It included Sony's BIOS. Here is the ruling.
(For those of you who didn't read the /. article.)

You can see the Connectix summary which also has a link to the 25 page finding.

Mozilla has to be good enough (we can take care of that) AOL has to be relieved of its contractual obligation to keep pushing IE (which they will be if that obligation is found to be illegal)

http://www.dcd.uscourts.gov/notice.html
It's verified; the Findings of Fact *will* be released today! :):):)

I was hoping to get down there myself to see if anyone showed up to cheer or boo or just drink beers and cry. Anyone interested?

I just noticed the site changed. Yesterday it said that at 6:30, you could get handed out copies of the verdict at the John Marshall entrance of the District Courthouse... I assume the location hasn't changed... someone on the DC-LUG said this is around 3rd and Connecticut... I believe in the NorthWest quarter.

Apologies to those of you not close enough to DC to care about this info.

Read this to get the word from the horse's mouth.
I would put money on that it will be this Friday, though.

1997 WIRETAP REPORT

1997 WIRETAP REPORT

Here is the Text of the opinion of the Court
for those of you who are interested.. havn't finished reading it yet.. will give my opinion then

I found this map. Maybe it will clear things up on this issue:

circuit court jurisdiction map

I find it interesting that part of the descision was

The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional " aspects.

With the continuing approach of computers that can understand and act sensibly on speach proceeds, this ruling gets closer and closer. I don't think this is here yet (it will, imho, be overturned) I do think that it's inevitable that this will happen. As computers become able to interperate a wider and wider variety of things, the export laws would have to get more and more restrictive, and are more likely to be overturned.

The government, moreover, has reserved the right to restrict source code in printed form that may be easily "scanned," thus creating some ambiguity as to whether printed publications are necessarily exempt from licensing. See 61 Fed. Reg. 68,575 (1996).

Wouldn't this mean that the "RSA in three lines of perl" tatoos are legally exportable on the same basis that a book full of source code is, but that the "bar code form" of the same thing wouldn't be exportable?

It's interesting to note that the argument on the one hand is that source code is a "machine" (although a virtual one, it is still a machine) and on the other hand source code is intended, by definition, to be primarily human readable, and requires a compile step to be a machine. I wonder where this leaves interpreted languages, where there is no compile?

There is also a note burried in there to the effect that because the web and computers in general have become so powerful, personal privacy has become more scarce now than at any other time in history. And then notes that the widespread availibility of strong encryption would help to negate this effect and the people would regain some of the lost privacy. This is the ultimate point. Computers make it to easy to keep track of people, and we've been denied access to their equal ability to hide people.

http://www.ce9.uscourts.gov/web/newopinions.ns f/f606ac175e010d64882566eb00658118/febd2452a8a4d79 b8825676900685b71?OpenDocument

The text of the opinion is now available at the 9th Circuit website.

Agreed this is a remarkable and exciting result. agreed that this is quite likely to go up, given the stakes involved. For now, however, I will withhold further comment until I have had a chance to study the opinion.