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DeCSS Litigation Update
Winston Smith writes "Law News Network has posted this article on the current status of DeCSS litigation and how a Connecticut intellectual property attorney, with the help of Yale, Harvard and Quinnipiac law students, is fighting the MPAA." For more background on this issue, read our last news posting on the MPAA DVD issue.
While it is true that CSS does not prevent a bit-for-bit copy of the DVD, which would be indistinguishable from the original (and thus playable in any player), the average home user does not have the ability to do this. Large scale piracy operations probably do.
So, CSS doesn't prevent professional piracy, but it is (was) a barrier to copying and distribution by a casual home user. However, it also restricted the user in other ways, such as limited support for various operating systems, and region coding.
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What I don't understand is why they haven't been going after utilities such as Remote Selector that allow people with DVD-ROM drives to play movies from any region. After all, those would seem to do the same thing, right?
Editor Emeritus and Senior Writer, TeleRead.org
> It doesn't matter how lame my TPM is. If I encrypt something by XORing it with the the string "12345", it is illegal for you to produce a program which decrypts it.
I hereby declare that I am using a code, ASCII, to hide the content of all my postings. Anyone who translates it into plaintext is in violation of US law, and can expect a nasty message from my lawyers.
Yes, even people who live in Norway.
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Sheesh, evil *and* a jerk. -- Jade
Yes, you are right that you can get your own DVD press and fabricate your own DVD disks, and press as many DVDs for your private use as you like.
However, what the Digital Millenium Copyright Act does is make illegal the defeating of technological protection mesasures, or TPMs.
It doesn't matter how lame my TPM is. If I encrypt something by XORing it with the the string "12345", it is illegal for you to produce a program which decrypts it.
It doesn't matter whether it makes copying practical. You can't make movie DVDs with a DVD writer.
It doesn't matter whether copying is practical without defeating the TPMs. For example, what the MPAA is really concerned with is the ability to broadcast pirate movies over the Internet, not making knockoff DVDs which is imposisble with consumer equipment. However, it is easy enough to redigitize the very clean analog signal to create a secondary master on disk without DeCSS. This doesn't matter.
DMCA title 1 makes defeating TPMS illegal. Period.
The only exceptions are:
As far as encryption research goes, its hard to argue defeating CSS advances the state of cryptography.
Software interoperability for Linux is the strongest argument, but is undermined by the fact that DeCSS was written on Windows, which already has a DVD player, but that it doesn't allow you to actually physically play DVDs on Linux. It's just an intermediate step. However, it is not clear that even if it did make it possible, that the courts would rule that this is "interoperability" in the statute's sense of the word. In fact, I'm pretty sure it's not. If I reverse engineer the Word file format to allow my wp to read the customer's files, then that is interoperability. I'm not giving them access to the copyrighted material, but to their own files. DeCSS by contrast opens up the copyrighted materials, albeit almost soley for uses the average person would consider legitimate.
The library exception was something congress couldn't figure out and left to the executive branch to sort out.
The bottom line: MPAA is going to win this one, because of the DMCA. DMCA is bad law, in that in practice it makes illegal things that are reasonable to do, and does not provide any real practical protection against things that are unreasonable uses of copyrighted materials. It is against the public interest, but unless there are constitutional grounds for overturning it.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Something to keep in mind - Corporate charters are granted to companies by the citizens of the state (or the government operating - in theory - on their behalf). These charters give the owners of the company certain legal protections that are not afforded to other types of businesses. Incorporation is not a right (it's not mentioned in the Constitution at all). It is a privilege granted by the citizens of the state at their discretion. This privilege can be revoked.
/.ers living in Deleware (where all of the members of the MPAA are chartered) start writing/phoning/e-mailing your attorney general. Start a petition drive. Show these bastards that they only exist because we say they can, and if they want to abuse us that we are going to take our ball and go home.
The citizenry can request that the attorney general of their state revoke the charter of a corporation for failure to operate in the public interest. I know it is highly unlikely that any charters would actually be revoked (after all the companies' money probably helped to get the attorney general elected), but it might get the companies' attention, or at least the attention of the press.
For example, an effort is currently underway in California to revoke the charter of Unocal Corporation for repeated polution and violation of environmental laws. So all you
As I understand it, copy protection is a bad phrase to use here also. If I copy what's on the DVD to another DVD, what's to stop it from working in any DVD player that can decode the CSS stuff. It seems like the only real use of CSS is to make sure people in Japan can't play the movie if they buy it in the Sates, or some such nonsense.
This is actually a very important point that has been made before. A particularly good example of this is copyright expiration (though the current trend suggests that you shouldn't count on any copyright exiring any time in your life). Suppose, for instance, that a movie studio releases a DVD version of a very old movie that is no longer under copyright. They should have no right to control your ability to copy it, since it's now in the public domain. But if they release it as a DVD they still get protection. Why? Because you can't legally remove the DVD copy protection; any tool that can remove it from a public domain work can also remove it from a copyrighted work, and hence is illegal. The result is that your rights have been curtailed without you being able to do anything about it.
There's no point in questioning authority if you aren't going to listen to the answers.
>Is it really true that some DVDs contain commercials that standard DVD players won't let you skip or fast-forward over?
I've only encountered one such situation that seemed really bad: the Disney release of Tarzan on DVD. Normally, you pop a disc into the player and you sit thru a few seconds of "FBI WARNING" screen that you cannot skip, then the interactive menu screen comes up to let you pick subtitles, alternate languages, special features and play the movie.
But this damned Tarzan disc shows about 3 minutes of ads and movie trailers that you can't skip past. When I hit the menu, skip or FF buttons, I just get the little red circle with the slash through it just like if I try to skip the FBI warning. Damn annoying. I think I heard someone say that they did this by putting this crap on the same track as the FBI stuff which the player is pre-programmed to always play. Seems pretty shifty to me and if Disney makes a habit out of this, then they will really piss consumers off.
There is much cruelty in the universe, John.
Yeah, we seem to have the tour map.
Something I'd like to add: copying isn't illegal. There is nothing illegal about making a copy. Its the distribution which is illegal. Figure I can make as many copies of something I've bought as I like. Its when I start distributing those copies that I get into trouble.
There's a Matrix event this Thursday: http://www.warnervideo.com/matrixevents/
This will be with the some of the editors and the special effects people. They might not be the most relevant people, but they are in the industry and their opinions might matter in the future. Besides, I'm sure that there will be other execs from Warner there too.
Bombard them with questions about CSS and deCSS. Keep it clean and intelligent. I tried at the last event with the Wachowskis, but obviously my questions were filtered. Enough people asking questions will get noticed, even if nothing gets through.
I think we should have a court decision or law that states that copyrights will not be enforced by the courts when technical means, such as the DVD CSS, have been used to infringe the fair use rights of purchasers. Otherwise, publishers will use access controls to rewrite the copyright laws, without an act of Congress. Why should publishers be able to ignore the parts of the law that they don't like? The recent discussion of electronic books illustrated the disregard some publishers have for fair use.
Mea navis aericumbens anguillis abundat
is at the end of the article
"When they charged $79 for a VHS movie, it created a clear incentive to make pirated copies,"
he said. "When they charge a fair price, the market for pirated copies disappears."
Now, of course to get rid of a pirate market, there would have to be one. I haven't seen it. And they know they aren't against "piraters" out for a profit, they are against "sharers" who are against draconian control of the media. The Internet makes control of digital media impossible. The longer is takes the major copyright holders in the U.S to realize that, is the longer that lawyers will be making money off them. And the longer they WON'T be making money off us.
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+&x
Granted VHS will most likely die one day anyway of natural causes due to superior technology.
By 2006, TV as we know it (and the attendant VCRs and DVDs) will be replaced by the new HDTV. This, in turn, will obsolete our present VCRs and DVDs and require that we buy all new video players and all new copies of our favorite movies.
Think back: 78rpm, 33 1/3rpm, reel-to-reel, 8-track, casette, CDs.
If I were in the movie business, I would be busting a gut to see that there was no way to home-copy with the new equipment that will accompany HDTV. And I would use the present generation of DVD to perfect lawsuit responses so as to remove the incentive to hack/crack open protection schemes.
MPAA et al says they are concerned about the loss of sales of DVD-Audio because CSS is broken. Maybe. But you can bet that they're really pissed about the potential loss of a completely controlled, wholly new market in HDTV-DVD (DVD-II?) if they can't con the courts into stomping on DeCSS and friends.
I was having some thoughts about the inevitable conclusions of this whole mess (and the related mp3/SDMI mess), and realized that the MPAA and the RIAA truly have their work cut out for them in the future. What no one has really mentioned yet is that technology is constantly improving in all ways, not just in ways that require things to be hooked up to other things with little wires. What I'm trying to get at is this: what happens when a (digital) camcorder comes out which is good enough to record without any picture degredation (visable to the human eye)?? How can the MPAA stop me from renting the new HDTV-DVD of The Matrix: Part 6, playing it on my new HDTV, recording it with my new kickass digital camera, editing the result on my PC to remove everything in the picture outside of my TV screen, remove ambient noise, *downsample* to HDTV resolution, compress it down to 15 gigs or so, and pop that sucker off to the rest of the world via Napster v2.0 BETA 38??
Now, of course, there are a couple ways to attack the process I just outlined, but they're all pretty damn scary to think about:
First, they could use some sort of Macrovision thing--Macrovision is this funky strobe-light type thingy stuck on all current DVDs that screws up the picture if you try to videotape your screen with a camcorder, because the ugliness pulses are synced up in such a way that you don't notice them when watching on TV, but they create interference with the frame rate of your camcorder. Sort of like how computer monitors have that awful refresh interference when you see them on your local news. Of course, they look just fine when they show up on your national news, because there's a way around that problem--you just have a video camera which operates at the same refresh rate as the computer monitor; in other words, your camera has an adjustible frame rate. So, the MPAA could "mandate" that this feature not find its way into future camcorders. Of course, that would mean that you wouldn't be able to make a video with your computer in it without getting funky lines. Plus it would mean that the camcorders of tomorrow would have a different frame rate than the TV's of tomorrow, which also seems like a pretty bad outcome and thus doubtful.
Next, there's the bit about uploading the result to my TV and editing it. They could try to get in the way of digital video editing on the consumer level. (It would be impossible on the professional level, so they wouldn't even try; unfortunately for them, that means the equipment to do this sort of thing will necessarily be available, just perhaps more expensive.) Of course, now that Apple has invented desktop video editing a couple months back with the release of those new iMacs (note: sarcasm), this is probably too mainstream a technology for them to put back in the bottle without several people noticing.
Then there's the bit about all the edits we made to improve the quality--removing ambient noise, especially. The best the MPAA could hope to do is to make these tools available only on a professional level; still, with the inevitable advance of computers, and with the probable advance of open-source software, it seems quite doubtful that the average person 10 or 15 years from now won't have considerably more video editing capability on their desktop than the average movie-editing studio does now.
On a related note, there's the bit about downsampling to HDTV resolutions. The MPAA could try to limit (consumer-targeted) digital camcorders to HDTV resolution. However, doing so would mean a loss of quality for any video which was recorded and then digitally edited in any non-trivial way. Plus, it would mean an arbitrary limiting of available technology; cheap digital cameras already beat HDTV resolution (just 1024 x 768 IIRC), and it's certainly not too hard to just "do that" 60 (or whatever) times per second. (Yeah, storage concerns, but this is the future. Let the thing have a high speed wireless connection to the internet and use your home server for storage.) The bottom line is, if the MPAA tried to stop piracy here, lots of people would notice and would be very justifiably angry.
Finally, there's the bit about posting it to something sorta like Napster. Now, I'm not going to buy any arguments that 15 gigs is too much; we all know that in 10 years or so 15 gigs of hard drvie space will be about equivalent to the 5 MB an mp3 takes up now; even if it's not quite there, you have to remember that a movie is 2 hours of entertainment whereas a song is just 5 minutes. You might have a slightly better argument when it comes to bandwidth, but there will be a whole whole lot of people, including the MPAA, working very hard to ensure that HDTV quality video can be streamed into consumers' homes over the internet.
So the only avenue of easy attack is Napster. Of course, Napster is just a protocol; at this point I don't think anyone much cares about whether the RIAA wins their suit against Napster (except Shawn Fanning), because it's far far too late for that. Like it or not (and a lot of the old fogeys around here seem not to), Napster and Napster-like protocols are inevitably part of the internet now, just as much as ftp or irc. There may be some wrangling over the next couple years before we see which protocol will actually win out, but rest assured that one will. Now the question becomes, what can the entertainment cartel do about it? Obviously there's no way they can keep it off the computers of any geeks. Of course, geeks could trade pirated stuff years ago, because they knew how to use irc and ftp, and BBS's before that. What about the average consumer? Well, assuming that open-source software succeeds in making its way into the consumer's consciousness--which it appears that it will--then suing everyone in sight won't accomplish much. So it looks as though the only chance they have of success is some sort of large scale regulation of the internet. We all know it can't be done without completely changing the character of the internet, drastically for the worse. Whether it can't be done at all is still too hard to tell.
So, while I seriously doubt anyone has actually read this far, I'd like to ask those of you who have: what do you think the MPAA is trying to accomplish here? Do they have any plan to block universal sharing of movies in the not-so-distant-at-all future? Have they even thought about it yet??
Rather than simply sitting back and refuting the MPAA's claims ("We're not pirates!"), we need to take the initiative and grab people's attention. First impressions count a lot, and most people haven't heard about DeCSS yet. Explain the issue in simple terms first to catch their attention. Then the people who want to know more can read up on how the whole situation started.
The piracy issue is a lost cause -- most people associate piracy with being wrong. But pick a different viewpoint (huge corporations are trying to control who can watch DVDs), and suddenly the MPAA appears to be picking on a bunch of innocent people. Forget the technical explanations; present the case in ways the technologically-uninformed can understand.
As long as the MPAA is defining the terms of the debate, DeCSS is always going to end up looking like the bad guy.
Green Monkey
They claim this is to prevent people in other regions from watching a DVD from a region where the film already played its run while the film is still coming to or hasn't yet hit local theaters. I might agree with this if the region lockouts expired after a resonable amount of time but, WHY ARE FUCKING 50+ YEAR OLD MOVIES COMING OUT WITH REGION LOCKOUTS ENABLED? Kinda lays waste to the distribution-scheme argument, eh?
Or maybe it's to prevent competition with licensed local distributors/translators. Well, when these local distributors "port" a DVD to their region, they often cut out the extras, change the audio format (5.1 -> 2ch stereo), muck with the screen formatting, add in hard subtitles, edit for content, ..., in short, IT'S NOT THE SAME PRODUCT ANYMORE, so how can it 'compete' with the local version.
Third, lots of films NEVER SEE A LOCAL RELEASE in other regions. How long is reasonable for me to wait "in case" the title is picked up locally? 5 years? 10 years? 50 years? forever? I import a lot of anime from Japan to the US that will never see the light of day here.
Region coding violates fair use, IMO, and I am doing everything in my power to circumvent it. And not through lobby efforts or other bullshit that'll take decades to never to happen. Region coding is wrong now. So I have DeCSS, as well as several hacked PC and stand alone players.
I pay for all my DVD imports. They're legitimate copies. The original IP holders got their fair cut of the sale. Isn't that what all this region coding stuff is supposed to protect? I am following the spirit of the law. So what's the problem? Fuck you MPAA. Am I being wrongfully arrogant here?
The American Libraries Association's comments point out an even better rebuttal of the MPMA's case. Access control refers to prevention of acquisition of a copyrighted work, not use of that work once it has been acquired. Access and use are separate and distinct terms in copyright law. As CSS is not an access control mechanism, but a use control mechanism, bypassing it isn't illegal. Anyway, under the "first sale" principle, the copyright holder has no right to control the use of a work once it has been sold to a customer, and the DMCA has a get-out clause that says that no existing rights should be considered to be revoked by the DMCA.
The article contains a common error - 'a computer program which removes DVD copy-protection'. As I understand it, DeCSS has nothing to do with copying. It removes the playback 'protection'.
DVD players are crippled to stop you playing discs in countries where the movie studios don't want you to. However, in most countries copyright law does not allow them to impose such restrictions (IANAL), so use of DeCSS is not illegal. In fact, it is just letting you exercise rights granted by law.
-- Ed Avis ed@membled.com
- Slavery was outlawed and supposedly equal rights based on race were guaranteed by constitutional amendments during and shortly after the Civil War. However, for the next 100 years, the local, state, and federal governments and courts allowed the so-called "Jim Crow" laws to deny legal equality.
- The movie and recording industry via the DCMA )and the software companies via the UCITA) are seeking to create and enforce rights that are ultimately anti-consumer, telling me what I may view
/listen to / analyze /reproduce data and how I may view / listen / analyze / reproduce data -- not based on technological patent, but on copyright. - This is a fundamental change, because if I buy a book which is copyrighted, I am free to read it whenever, however, and for whatever purpose I can think of. Within "fair use" limits I can quote from it, skip pages, cross out sections, etc.
But if that wasn't bad enough, the industries are attacking the Net citizenry as if we are citizens with lesser rights -- by the broad based attacks on the freedom to disseminate information via the web.But if the critical mass of people do not move the political forces to protect our rights, we may spend the next 100 years fighting for personal vs. corporate rights.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
So far, it appears to be because the lawyers have tried to fight it on free-speech grounds, where it is a thorny and borderline problem. even the densest judge would start to get a glimmer of sense if you presented him with the following:
- show him piece of paper with the letters "y3oo9 294oe" on it
- tell him it is a message in code - that without the secret key, you can't decode it
- get a second blank sheet, and write on it "y3oo9 294oe"
- show him that, without understanding the code, you have successfully copied it to a blank sheet - so that the copy can be used to decode the message as well as the original could
Mind you, judges can be pretty stubborn if they want to be--
-=DaveHowe=-