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DeCSS Injunction Ruling
Anonymous Coward writes "This morning, Judge Lewis Kaplan of the Southern District of New York issued his memorandum opinion explaining his decision to grant an injunction against people publishing the DeCSS source code. His ruling specifically finds that the
Digital Millennium Copyright Act (which prohibits the publication
of computer programs designed to circumvent copy protection) is
constitutional, and does not infringe on the defendants' free
speech rights. He also suggests that computer source code is not ordinarily a form of expression, and that, even if it were, Congress could regulate it in order to serve other interests, such as the economic interest of copyright holders. See 2600.com for
news on the protest tomorrow night against the plaintiffs. "
IANAL, but it seems to me that in one fell swoop this judge has just said that there is no such thing as fair use. Are there any lawyers out there who can say for certain if I am correct in this assumption?
I live just outside our nation's capitol and I work in IT, I was discussing the DeCSS flap with a mixture of Techie and Non-techie friends. I said "What do you guys think of this DeCSS (I pronounced it Dee-see ess ess) stuff?" A non-techie friend responded "What is that? The new capitol Gestapo?"
Um, isn't the whole basis of the defense that merely cracking the CSS does not circumvent copy protection, because there /is no/ copy protection, unless of course you consider regional coding "protection", which itself is illegal by international law???
Hummm?? Anybody??
Jazilla.org - the Java Mozilla
It's 10 PM. Do you know if you're un-American?
What I (and a good number of people, I'd guess) want to know is, why didn't the counsel for the defense make these sorts of piracy arguments? I am somewhat confused as to why the plaintiffs got away with the classification of CSS as "a technological system that controls access to other copyrighted works" -- although here you get into the ambiguity I just described. Kaplan ends up ruling that CSS protects content -- but it really only ends up protecting playback, since anyone with some equipment can copy but only people with "legit" DVD technology can play it back. As far as I can tell from the various hearings/rulings that have been posted, this distinction is never made clear by the defense! There's a lot of exemptions they try to invoke, but Kaplan's reasons for rejecting them do not seem out of line. In fact, he appears to do a pretty decent job of assessing what has been presented to him. Did the defense throw it all away by ignoring its best argument? The recent LinuxWorld interview with Jon J. had the same complaint; i'm just echoing it here.
The judge argues that code is not a normal form of personal expression. Works of art like books and scuplures are synthized in the same maner: an idea in the mind of a person modivates them to create. Even things like building furnature, baking cakes, etc are forms of personal expression.
Does Judge Lewis Kaplan think that some agency has rights to dictate what code a well minded individual can write? If he does, then said agency can also dictate how one can write books, make sculptures, build furnature, and bake cakes.
The law was never mind to do this. I certainly hope that another judge see this error and reverses this decision.
But lets take a look at what the ruling says:
In October 1999, an individual or group, believed to be in Europe, managed to "hack'' CSS2 and began offering, via the Internet, a software utility called DeCSS that enables users to break the CSS copy protection system and hence to make and distribute digital copies of DVD movies.
I don't think it's been "proven" that this is only to copy DVD's!! We know this isn't the only reason, therefore the use of the word "hence" really makes me uneasy. We can't even make copies for playback right now with a DVD-RAM, and you don't even need to break the encryption if you have a stamp machine. I can't beleive this was in the opinion, it sounds more like something the corporations would say.
The requirement of immediate and irreparable injury is satisfied in this case. Copyright infringement is presumed to give rise to such harm. In this case, plaintiffs do not allege that defendants have infringed their copyrights, but rather that defendants offer technology that circumvents their copyright protection system and thus facilitates infringement. For purposes of the irreparable injury inquiry, this is a distinction
without a difference. If plaintiffs are correct on the merits, they face substantially the same immediate and irreparable injury from defendants' posting of DeCSS as they would if defendants were infringing directly. Moreover, just as in the case of direct copyright infringement, the extent of the harm plaintiffs will suffer as a result of defendants' alleged activities cannot readily be measured, suggesting that the injury
truly would be irreparable.
So, if I read this right, just the fact that it makes circumventing it possible, this is exactly what is being done. This absurd statement makes me want to grab a bat and start breaking things. The last statement is incredible as well, equating "umeasureable activities" with "irreparable injury"? Am i missing something here? Someone tell me PLEASE....
One of his arguments for not accepting the reverse engineering argument bothers me as well:
Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.21 In consequence, the reverse engineering exception does not apply.
So is he saying the copyright software/system is not a copyrighted piece of software? Is he saying the situation is different for hardware? Doesn't that seem to be a contradicion? Anyone care to expand on this?
I haven't even read the rest of the opinion, because his opinion is plainly clear. His idea of a "level playing field" is this:
Corporations have all the rights and tell you what to do, and you can't do anything about it.
I'm not a big fan of capitalism, but the fact that he doesn't support reverse engineering takes things one step worse: without the ability to compete, we've gone from capitalism to a sort of corporate-totalitarianism.
This lack of respect for people's rights is unacceptable. Furtunatly, they can't do anything about it, short of throwing me in jail. When I pay my 20 bucks for a DVD, I'll do what I want with it short of redistribution.
Lets face it, in 3-5 years we WILL be able to copy DVD's, most likely for playback in DVD players (hopefully).
There might be no recourse for Hollywood, the cat is out of the bag, as many have said. Trying to stop technology that people like with artificial controls is tough, just look at the mp3s. Copyright holders will have to find a real, technology based way to prevent this, which might be impossible in today's world. I sure hope it is.
Not true. Algorithms have been held up, in US federal court, as speech. Look at some of the cryptography cases and you'll see what I mean. Equally, the entire professional of mathematics would be enjoined from free speech protections if algorithms were not treated as speech. I think you misunderstand what speech is. Speech is not just words or text. Its not even just audio, video or anything else you can fit into a nice tidy list. Speech refers to expression in all its forms. Its a vague concept, on purpose!. This prevents tyrannants of all types from trying to squeeze speech into a nice tidy little bundle they can lock away.
So freedom of speech is not something relegated to text, but to all forms of communication. Be it a painting, a scuplture, dance, spoken words, written words, e-mail, scientific documents, mathematical formulas and even source code, which is a form of expression.
So, this judge is wrong, and hopefully he will either see the error of his ways, or a higher court will overturn his ruling. The bottom line is that this judge is but the first round, and there are plenty of appeals from here to courts which have seen thru this sort of hogwash before and made the right ruling.
Common sense will tell you that code is speech. How else would you express the idea?
You're right about one thing: The DMCA is corrupt. Its the biggest attack on the first amendment ever, and this case proves it. Its far more insidious than the CDA ever was (that was so patently unconstitutional that everyone knew it was going to get overturned), the DMCA on the other hand requires a thorough understanding of the issues (which most judges sorely lack) and hence makes it easy for someone to argue one thing, while getting someones freedom of speech rights enjoined. Its all nice and tidy. On the surface the case looks simple. Its too complex to explain to laypeople, and it lends itself to an emotional argument in favor of restricting speech rights. So the DMCA makes it really easy to control expression, without alerting the masses to the fact that they just got sold down the river.
The DMCA is corrupt alright, and we should work to get it ruled unconstitutional by any means necessary.
--
Python
Python
This is so frustrating. What can average joe's due to help? I've bought the OpenDVD t-shirt, but what next?
It's been said before, but it bears repeating:
Join the EFF. Get a student/low income membership ($20), get a basic membership ($35) hell if you made big money on the Red Hat / VA Linux stock deals go all the way and get a visionary ($1000) membership. These guys are putting up the legal defense, and like it or not justice costs money in this country.
Let's remember that money isn't the whole deal, the more people the EFF can count as members the more clout it has with various government types. Who are you going to listen to, the group that says "well, we have a couple of members who show up every so often", or the group that says "We have 50,000 registered members." Size does matter.
The second half of Footnote #14 is perhaps the most interesting part of the whole ruling. It says: >...even if DeCSS were intended and usable solely to permit the playing, >and not the copying, of DVDs on Linux machines, the playing without a >licensed CSS "player key" would "circumvent a technological measure" >that effectively controls access to a copyrighted work and violate the >statute in any case.
That's interesting because it addresses an angle that most of ``our side'' has not covered. There have certainly been enough arguments that DeCSS is not an effective form of copy protection; but it is an effective form of control. Judge Kaplan' statement implies that, regardless of the original coders' intent, DeCSS is a way of maintaining access control (for the movie studios) at the read-and-display level -- and that this is indeed its primary function.
This small side note, if legally correct, changes the whole playing field. If CSS is not to be considered copy protection but rather access control, then DeCSS is illegal simply because it avoids the need to pay license fees for a reader, notwithstanding any argument about potential redistribution of the original material.
It is as though books came with diary-style locks, and duplicating the keys were illegal. Ludicrous in the non-digital case; but a matter of law in the digital case.
Stand up for your beliefs -- don't be afraid of what's gonna happen
Firstly, it most certainly is not the only way to pirate DVDs, but, as at least one pirate admitted, it certainly is the easiest. However, the judge's wording implies that this is DeCSS's only purpose. He further states that no evidence to the contrary (that DeCSS is used for linux-interoperability) has been presented. I'd like to know why not. Did the defense really think the judge would take their word for it? Where was the laptop running linux that couldn't play DVDs until software based on DeCSS was installed?
This makes it painfully obvious that the judge has no understanding of the Open Source movement. Of course there is no commercially signigicant purpose; who's going to pay for OSS when it is freely (speech AND beer) available? Besides, the primary intent of DeCSS (unless you believe the judge) is to allow viewing DVDs that have already been bought under linux.
But wait, the judge doesn't buy the whole linux argument in the first place:
[A]ssuming that DeCSS runs under Linux...??? Where has this guy been??? Oh, wait, I bet he doesn't read SlashDot, does he? Anyway, if the defense had done its job, there would be no assuming this or that about DeCSS and Linux. Secondly, he completely misses the point about programs "running" under operating systems. It's computer code. Download it, compile it, and *poof* it runs on your computer. (The complete lack of proprietary MicroSoft foundation classes, libraries and 'extensions' of standards might be a clue that it was developed in a *nix environment!) Finally, where does he get off deciding what was going through the head of the anonymous German hacker who actually wrote the program? How does he know the intent with which the program was developed? Sure, some people may use the program for illegal gains, but that isn't what the judge is apparently concerned about here. Apparently, I can claim that I developed something with one purpose in mind, but if someone else finds a malicious use for it, that is somehow my fault. I think not! Otherwise, gun and/or bullet manufacturers would be held accountable for every firearms-related homicide.
Finally, I think the judge misses the point in the paragraph in which he quotes the following from the DMCA:
This statement specifically refers to reverse engineering computer codes that have been legally obtained. The point of the matter is that it is not clear whether it was an encryption algorithm that was reverse engineered or if the algorithm was discovered by "hacking" the Xing encoder. Maybe this point wasn't made clear enough in the hearing. (I won't even go into the argument about the legal status of click-through licenses. Suffice it to say that I've never read through one... I'll just make this point: how does paragraph reconcile with licenses explicitly forbidding reverse engineering? Which right trumps the other?)
Overall, from the judge's repudiation of the defendants' claims, it is clear that 1) the judge knows little about technology and 2) the defense did little in the courtroom to back up their assertions. Since this was merely the issuance of preliminary injunction, there will be further opportunities to back up the claims of the defense. I just hope they are more prepared then than they were last month.
Of course, having more than one weekend notice might help matters a bit...
Eric
The Current Situation
The judge is not clueless, and the lawyers from DVD CAA are not liars -- In this case we (the open source community) simply blew it by not figuring out how to deploy the resources to defend ourselves.
Brief credentials statement: I Am Not A Lawyer, Nor Do I Play One On Television; but I was a courts/copshop reporter for several years in the 1980's and have the general knowledge of copyright/IP that a journalist and a programmer picks up.
Read the transcript of the hearing, then the decision. The defendants and their lawyers were given nearly a week's notice of the hearing and arrived badly organized and with little if any evidence. As Judge Levin noted (by my count) eight different times in his decision, defendants presented no evidence to back up their arguments, while the plaintiffs (DVD CAA) had lots, including, IIRC, the transcripts of discussions here on Slashdot. The defense was just not ready to do the job. Two thirds of the legal staff there was from EFF in one form or another, but from the transcript it looks like they had not been able to spend a lot of time on the specific case ahead of time -- Judge Levin found (for good reason in some cases) a number of their arguments irrelevant to what he had to decide.
In reaching the decision, Judge Levin pointed out real weak points in the defence case. The core problem is the "reverse engineering" argument that gets used around here a lot. Here's the relevant portion of the opinion:
Pretty devastating, legally. They really didn't present any evidence to support their arguments, but the defendants lawyers did apparently admit that DeCSS worked on Windows as well (is this true?) so is not exclusive to Linux (so much for it being just for playing DVDs on Linux), and the reverse engineering exemption is explicitly not applicable here.
Our Goals
Do we want to get a Linux DVD player, or do we want to get rid of or modify the new copyright law? These are two different goals, with two different sets of actions to carry them out. As others have pointed out, if all we want is Linux DVD, then it is probably only a matter of money -- sombody call Larry at VALinux.
Action
If you want to change the law, learn and use the tools that are needed to do the job.
Groups of people get the law changed all the time -- but it takes attention to detail, advanced social skills, persistence, and some money. We can do it if we really want to.