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Interview with DeCSS Lawyer
Feed Mag currently is running an interview with Martin Garbus. Garbus is going to be the lead litigator in the attempt to stop the gag order on 2600 regarding the dicussion of DeCSS. Garbus is one extremely intelligent man, and the interview really shows that.
While many of the libertarians on /. (including myself) may see the merit of the "code is free speech" defense, the fact is that it has little legal merit.
I'm not a libertarian, but the code==speech has a great deal of legal merit. It has precedent in two different circuit courts (though not the circuit that the DeCSS case was filed in).
Free Speech dosn't shield you from the effects your speech has ergo the "Fire in a theatre" canonical example. But it should shield you from prior restraint of speech in all but the most extreme situations. The judge realizes the speech implications of the case and has moved up the trial date from December to June or July. The preliminary injunction should also be lifted for this very reason. That motion has not been heard yet.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Anomalous: deviating from what is usual, normal, or expected
Canard: a false or unfounded repor
http://www.theregister.co.uk/000525-000013.html
:) Amusing that the BBC got taken along that far, not to mention 80% of slashdot..
Heh.
BilldaCat
Slightly off topic, but I wanted to submit this suggestion to /.'ers:
Just wondering if any of you folks have considered
ways which hackers/users could benifit from the draconian copywrite laws like DMCA. Here's one quick example:
Host a website from which people can download, say, DeCSS. However to get to the code, viewers
must agree to a click-through contract whereby
they give up all rights to any motion pictures
they (or those they represent) own. Thus MPAA could never view such a site.
This is a far-fetched example but you get the idea. There are a lot of things which hackers would agree to which big corporations would not.
I know this goes against the spirit of freedom in software, but until DMCA is repealed or found unconstitutional, we may find cause, in certain cases to "fight fire with fire"
-C.M.
I came up with an idea a few months ago (even posted it here on Slashdot) but no one took it seriously. I'll summarize it...
Premise: the CSS scrambling scheme is not patented. Nobody owns it. A case can be made, using DMCA, to prevent people from using its inverse (descrambling), but not scrambling.
Action: Create a CSS-scrambled DVD. Do not sign any agreements with MPAA or DVD-CCA in order to get the info. Specifically, do not grant them any authorization to circumvent your protection.
Conclusion: Every single DVD player on the market becomes a DMCA violator, since it circumvents the protection. DVD-CCA is also a DMCA violator, since by licensing CSS, it "traffics in tools to circumvent."
Nobody has taken my idea seriously, though. As far as I can tell, the only weak link is using CSS to scramble, since some might say CSS is protected by trade secret. When DeCSS loses its trade secret status, though (and I think this is inevitable), then CSS could be inferred/REd from DeCSS. This it's curtains. All you need then is a single DVD without a pre-burned key track, and you can start suing everyone left and right, or negotiate authorization fees (assuming DMCA is still standing by then).
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
would be to here. :-)
--
not plane, nor bird, nor even frog...
feed story
the memorandum order (from 2600)
<//-------------//> /. but you can tell it was designed by programmers..."
"I like
Nowhere is a corporation (or individual) assured the Right to a profit.
If you favor Right to Work, you could argue that a Corp or individual has the right to do business (attempt to make a profit), but to assert that the corp has a right to make a profit implies that if the company loses money, then their rights have somehow been violated. That is incorrect.
Furthermore, if a right of a corporation to do business is based on the right of an individual to work, then it can be shown that the coroporations do no have any inherent right to do business by their own lights, since the corporate stance seems to be generally against the right of the individual to work.
At best, the "right to do business" is a priviledge, sanctioned by the govt (which was supposed to represent people); it stops well short of ensuring that a company will make a profit simply by virtue of having won the priviledge of doing business.
Sorry if this seems like splitting hairs, but I've seen that type of remark so often, I'm afraid some younglings might actually believe it...
It is Right of Ownership which is at the crux of the problems facing the internet. What constitutes ownership, and what benefits and responsibilities are attached to it?
The right of ownership is also at the very basis of capitalism. I'll leave that proof for somebody else, since I want to harp on another topic you touched on (sort of)....
[about the press and the internet]
Just as it is important that the press strive to be percieved as impartial (mostly a joke, these days), I think it is becoming important that netizens fight against the characterization of lawlessness that is being foisted upon them by, among others, the press.A Reuters article of this morning refers to the internet as a "culture of theft".
I believe the long term goal of many elements within the govt and industry is to criminalize the types of knowledge and behavior associated with net culture, hacking, and so on. This is a tactic used throughout history by entrenched power structures to protect their position.
When the PTBs feel that there is a possiblity of any measure of control of the populace slipping from their grasp, expect them to demonstrate complete disregard for established legal conventions, compacts, treaties, and agreements of any kind. They will deny the need for a mandate to perform any henious action to damp what they will label first "disruptive", and then "criminal" behavior or attitudes.
What we are seeing now is only the pre-implementation spin: "*bad* hackers, *bad* internet gurus; they do criminal things." => UCITA, DMCA, etc, ad infinitum.
The financial rewards which will acrue to industry if it becomes illegal, say, for an individual to host a website on a non-company-owned server, are manifest.
This type of control is also a direct goal of the govt, who, as we all know, is all in favor of preventing any form of terrorism not perpetrated by those 3-letter agency charged with identifying, evaluating, and neutralizing any real or potential disidents within the population.
The quieter you are, the fewer people notice when you disapear, the easier it is to paint you a criminal in the eyes of the world, the fewer people care when BATF splatters your brains to take you offline.MPAA is all about control of entertainment, which is known to be a powerful and pervasive influence, which cannot be entrusted to just anyone. If you don't believe it, ask a film-maker from the former USSR.
MPAA controlling the long arm of the law is just a gun to your head making sure you listen to what you're supposed to.
Take back the law.
"The Internet is made of cats."
Am I the only one who thinks that the real reason the MPAA is fighting DeCSS is precisely to control the how, when, and where of viewing copyrighted content? Am I the only one who envisions a brave new world in which you can no longer *buy* books, but must license the content for a limited time and for specific purposes?
We talk about how we live in the Information Age, but noone seems to understand how that fact will change our society and its laws. When our societies were land-based and agricultural, the owners of the land organized society in such a way as to protect their own interests at the cost of the poor saps who worked the land. It stands to reason that in the Information Age, the owners of the information (i.e., copyright holders) will do the same.
Picture yourself as an Information-Age serf and you will have a clear idea of what the MPAA has in mind. We are presented with two choices: lie back and enjoy it, or become authors ourselves and use our copyright/copyleft authority set up an alternative to their vision of the future.
The fact that code presents danger is somewhat irrelevant to the free speech defense.
The landmark case on this was a case about 60 years ago involving a book about nuclear bomb technology. The publishers of the book were sued based on the "danger" of the information. The court held that the book was protected by the First Amendment, even though the information contained in it was undisputedly dangerous.
You can send the source code of a virus to anyone you like, as long as you never compile it or attach it in an active form. The fact that Outlook will run scripts attached to a message as source complicates this issue. But just because Outlook is broken doesn't mean you should arrest people for distributing source code.
The other issue is that our government is prosecuting people who violate our overdependence on technology. What they are essentially doing is enforcing the status quo - requiring that things are allowed to stay the way they are. You're not supposed to rock the boat, and you can get in big trouble for it. However, the boat will eventually tip over, and things will go the direction they are naturally inclined to go. All that resistance does is delay things a little.
--- "So THAT's what an invisible barrier looks like!" - Time Bandits
"If you now went to the Disney Infoseek site, you would find references to DeCSS -- you would get through that site the exact thing that Disney's trying to stop in this suit. You would find that the search engines that are owned by these very plaintiffs do exactly the same thing that they're trying to stop. They link. What the MPAA is doing is trying to stop certain people from linking."
What this means, effectively, is that the search engines will be the only legal source of links to the DeCSS source. It is then only a trivial matter to track down the posters, and throw them to the lawyers.
Ultimately, DeCSS will be sent underground, and that could possibly strengthen the MPAA's argument that DeCSS is a tool of piracy (Oh look, they're hiding behind handles on secret undernet channels. They must be 31337 pir8ez.)
Just my tuppence worth. (Yep, I'm a tea drinker!)
==========
This message brought to you by the numbers Thirty One, Thirty Three, and Seven.
On a related note, how about if we modify the Samba code to include an HTTP transaction with Microsoft's server that simulates the process of downloading the "MSKerberos" spec and clicking the "I Agree" button? After a few weeks of getting hammered by Samba servers, Microsoft would surely back down on their licensing requirements...
The authors of viruses can be prosecuted because that code may present a real danger.
Writing a virus, or even publishing one, is not and should not be illegal. In fact, such restrictions would interfere with the creation of anti-virus software. What is outlawed is the act of unleashing a destructive self-replicating program out into the world... for that matter, even putting destructive software one single, stand-alone box that does not belong to you is a crime, because you are damaging somebody's property.
Just as the courts have decided to impose limits on verbal expression ... they will place restrictions on the distribution of code.
One concept that could perhaps be re-examined here is the nature of software: is code invented (like a coffee maker) or authored (like a novel)? One is protected by patents, the other by copyright.
Programs are mathematical constructs. They are important for their functions, not their forms. "Good design" is only valued because it improves the functionality (runs faster, debugs with less trouble, etc.)
In this sense, software is more like an invention to be pantented than a document to be copyrighted. If you invent a formula that tastes just like coke, or write a program that decodes DVD's, and do so using honest reverse-engineering methods, then you should be free and clear to do what you like.
IANAL, but it seems to me that this might turn into a case that brings up a lot of questions that the courts need to ask.
Information wants to be anthropomorphized.
Quoting Garbus: Right now the MPAA has got an order from the court which makes it possible to stop the posting of the DeCSS. The MPAA has now made a motion to expand the injunction to include linking. What I'd like to know is, if links themselves are prohibited, can simply posting the text of the URL itself be prohibited as well? If we get to this extreme, I think we've gone way over the first amendment line.
The Openlaw DVD Forum is going to submit an amicus brief making exactly this point. We're currently at the 4th draft and are trying to finish up by this weekend.
Garbus and his associate Edward Hernstadt have been very supportive of our attempts to apply open source methods to crafting legal arguments. Both have even posted to our mailing list. Anyone who wishes to get involved should check it out. There is also a very good resources page there.
And what does one do with these ripped DVDs? You end up with an inferior product, just like a cassette tape copied from a CD. You still have to purchase blank media to store the copies you make, and the industry has already imposed a tax on that media, ostensibly to compensate them for piracy losses, so what's the problem? This is not the huge problem that they make it out to be. It's just the VCR or cassette tape issue all over again. When will they learn?
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
In the next few days, we'll be filing an amicus brief arguing against the MPAA's proposed injunction on hyperlinking.
Join the fight!
-- Openlaw: Fighting for fair use and the public domain
Sing the DeCSS code to a Metalica tune then put it on Napster
134340: I am not a number. I am a free planet!
Is it linking when you post a phone number where people can listen to an answering machine telling you the link ?
I think my grandmother would be really confused if she got my answering machine, and it said, "Hi, http colon slash slash www dot plankensteiner dot com... BEEP"
Another neat trick would be to go into a crowded theater with little slips of paper with my phone number... and when people called it, the answering machine said, "FIRE!!!"
"Beware he who would deny you access to information, for in his heart he deems himself your master."
downloading a three megabyte file was ridiculously slow over a 14k modem. But now it takes thirty seconds.
I had no idea that 14K modem technology had progressed so much in the last few years! =)
The intro to the interview (here, if you need it), compares Garbus to a modern day Daniel Webster. I'm not convinced; it seems to me that he has more of a Clarence Darrow case on his hands. (From the Scope Monkey Trial, if you don't remember him.) Both were dealing with a case of the PTBs trying to squelch what is (was) a novel idea, and should have been protected as Free speech. Of course, Darrow lost....
BTW, what a brief piece, from the buildup in the description I was expecting a meaty sized dialog.
* Be that as it may, I did notice that perhaps the most salient point in the DeCSS discussion is missing: The movie industry has shifted the real discussion away from the fact that DeCSS is not presently needed for copying DVDs! Bit-for-bit copying is doable now. *
Perhaps this point was mentioned as a story here in
Thanks
Thanks
Jaco
> How would you distinguish the DeCSS case from the Napster disputes of late?
Nice tie-in with recent events but the two are far from related.
>What happens if you link into the Coca-Cola code?
Why'd they put it on the web , where it could get linked to?
>A different legal system is going to have to be constructed to deal with these issues on the Web.
That's something most people can't grasp, they are still trying to fold the old laws over the new world.
It is however a very good point about more bandwidth leading to larger case of piracy (see end of interview). I would never have been able to trade MP3s on my original internet connection, not that I had a sound card or anything.
Devil Ducky
Devil Ducky
MY peers would get out of jury duty.
In all my reading on the subject, not only have I found this to be true, but I haven't even found any argument to the contrary beyond, "No, you're wrong."
So is it bad when the lawyer hired to protect DeCSS doesn't seem to grasp this point in an interview? Was he just simplifying the matter for the interviewer, does he really not understand the nature of the software he's defending, or is there something I'm missing?
--Colbey
Beyond the 2600.Com Cease and Desist controversey, another one (though less popular) has risen on the internet...
:P
ChunkyMonkey.Com, a children's site owned and operated by a nice old woman who owns the trademark to the name "Chunky Monkey" (a lovable little monkey cartoon character) sent a cease and desist letter to ChunkyMunky.Com, a site devoted to desktop customization.
This is eToys vs. eToy all over again! E-mails sent back and forth between myself and ChunkyMonkey's lawyer are posted at my website here. I don't own the chunkymunky.com domain or anything, but I'm part of its community, so I took a stand
You should never take life too seriously - You'll never get out of it alive.
2,081,730 matches for decss
The same search engine only shows 1,065,121 matches for sex
Therefore decss is more popular than sex
134340: I am not a number. I am a free planet!
FEED: What's the evaluation process when you decide to take on a case like this?
GARBUS: I think you decide based on the significance of the case: What are the values that get involved? What are the social values? Why is it worth spending the time and energy? And it seems to me what this case basically deals with is balancing First Amendment values -- the right to an open Internet, the right to free speech, the right to the preservation of fair use with software materials -- against the claims of the people like the MPAA that permitting fair use just allows for piracy and the bringing down of their industry. I think it's the question of how you achieve that balance, protecting the artist/publishers who are entitled to be paid for the work that they do, while on the other hand making sure that other people can use what is appropriate for them. It's a balancing act.
I also think what the case will probably deal with or will affect is how the entertainment business or how the media business will change because of this new technology. Generally what happens is the law sets up a cage under which the technologies operate. Here the technology is outstripping the law, and the law is going to have to adjust somewhat to the technology. Law is based on two hundred years of precedence, and I think the precedent is the structure, and I'm not so sure that that structure can handle these demands. So the question is how do you build new structures, and what are those new structures going to be. And this is going to be the first case to define those.
FEED: How would you distinguish the DeCSS case from the Napster disputes of late?
GARBUS: The most important difference is that there's been no piracy that they've found through the use of the DeCSS. There are a lot of reasons why that's so: because it takes so long to download, etc., etc. Now, if there's no piracy, there's absolutely no reason why this DeCSS shouldn't be discussed, explained, posted. If, in fact, there was substantial piracy coming from it -- or the potential for enormous piracy -- then one might come to a different conclusion. But clearly here, based on all the testimony to date, there has to be a better balance. There was a case here -- the Betamax case -- where the movie companies came in, and they said you shouldn't have VCRs. You shouldn't be able to copy movies that come off TV because that's an infringement. And the court said, "Yes, it may be an infringement. The question is, is it a substantial infringement, and what are the other values that it serves by permitting that infringement?"
The other thing this case is about, which is very interesting to me, is that it's kind of going to be an Internet legal trial in the sense that some of the people on the Internet and some people who deal with the Internet are very interested in this particular trial -- and every document, witness's word, judge's ruling, and lawyer's call will be on the Internet within a day. Now, a federal court -- such as this court with Judge Kaplan -- is closed to cameras, but can't be closed to the Internet. There's going to be this extraordinary high-stakes battle for the control of the Internet on the Internet. In the sense that O. J. Simpson was the first TV trial, this becomes in a peculiar way the first documented Internet trial.
FEED: Now, tell me if I'm getting this correctly. It seems to me that there are three layers to free speech elements of this case. There is the fair use element, which is that the technology itself enables people to take small samples from DVDs and "quote" them effectively in their work. There's the right of the cryptography community to discuss techniques of getting through encryption schemes in some kind of public way. And then there's also a question, if I understand it correctly, of people linking to pages where these things are discussed.
GARBUS: Exactly. Right now the MPAA has got an order from the court which makes it possible to stop the posting of the DeCSS. The MPAA has now made a motion to expand the injunction to include linking. Now, the New York Times has talked about this case on its Web site. The New York Times has linked when it talks about the right to carry the DeCSS. Under the logic of this case, if you ban linking, you can stop places like the New York Times from doing that. The Associated Press, both in its pieces of paper and its Web site, has also referred to linking sites. Now, the New York Times is allowed to say that crack is being bought on 120th Street -- a different kind of linking -- without being told that it can't say that because it's going to be a participant in the crime that ultimately occurs. So I think the linking and posting, while separate issues, are related. If you now went to the Disney Infoseek site, you would find references to DeCSS -- you would get through that site the exact thing that Disney's trying to stop in this suit. You would find that the search engines that are owned by these very plaintiffs do exactly the same thing that they're trying to stop. They link. What the MPAA is doing is trying to stop certain people from linking.
FEED: It seems to me like this has been an issue from the early days of the Web: Linking itself as a technology has challenged a lot of our assumptions about the legal status of copyright and free speech, and so on. And we've still not figured out how to handle it.
GARBUS: Right. I think nobody has quite figured it out. What happens if you link into the Coca-Cola code, and you know that everybody can get that secret formula? Is Coca-Cola entitled to protection? We do have trade-secret laws. My estimate is that there probably have been three hundred thousand downloads of the DeCSS now in the United States. Now, once that's out there -- putting aside the question of whether it should be out there -- how do you put it back? How do you enforce trade secret laws? A different legal system is going to have to be constructed to deal with these issues on the Web. And this case is going to play a large part in that construction.
FEED: Is there a case from your past that this most resembles, or does it seem very different because of all the technological issues?
GARBUS: I think the technology makes it really different. Take the matter of operating systems -- there's another and very separate issue that you have with the Linux operating system. One of the reasons that there's so much interest in the DeCSS is that DVDs are not yet licensed to play on the Linux operating system. Now, to bring us back to the Betamax case, is Linux like a VCR? Can the motion-picture industry control distribution from the very beginning to the very end? Maybe the only platforms that can play DVD are those that pay the licensing fees. Or can you have other systems? Is that a violation of antitrust? Years ago, they made the motion-picture studios give up their control over theaters because they found it was a violation of antitrust. There are similar issues here.
FEED: Obviously the objection in terms of the piracy question is that the technology and the bandwidth is expanding so fast that in a few years software like DeCSS will enable widespread piracy. I mean, you look at the case of Napster -- three years ago, what goes on now with Napster and audio files was impossible because downloading a three megabyte file was ridiculously slow over a 14k modem. But now it takes thirty seconds.
GARBUS: I think that this process of copying data will always be longer and more expensive than traditional pirating methods. But one really can't project out until the end of time. Let's assume that at the end of the year, one percent of the total piracy is caused by the DeCSS, and let's presume that the discussion is there are First Amendment values with respect to the discussion of the DeCSS. How do you balance that? Now, in the Betamax case, the court did balance it. They said there will be infringements, but we don't look upon that as substantial infringement. We don't look upon that as infringement sufficient to override, let's say, a fair-use defense. So I don't rule out the possibility of piracy. I know enough now about the way things are copied to believe that, no matter how good the machinery ever got, there would be faster and more inexpensive ways. But as of today, nobody that I have spoken to can claim that any particular movie that was ever shown on the Internet ever came off a DVD, and nobody is even claiming that.
But in the end, I think Napster was too difficult a case for the court to accept at this time. Our case may be too difficult for the court to accept at this time. Piracy has a very large and powerful meaning. In the Rio case, a witness testified about the negative and positive effect of piracy. I don't think anybody believed it. No one wants to hear it. In the Napster case, there was -- if you want to use that word -- piracy. People were downloading files; you had ten million criminals. I think the problem is with the DeCSS if you have ten million criminals, what do you do then? And the other issue is how quickly the copyright holders have to move. Look at what happens in something like this MPAA case: A small group of people find out about these potential violations, and they bring a lawsuit. And then there's an extraordinary proliferation. Probably if the MPAA had left it alone, fewer people would have heard about it. If the MPAA weren't claiming that you could make these wonderful copies, that people were making copies, then I think most people would have left it alone. So I think that what this case may teach the MPAA and other copyright holders is that you can exacerbate a situation by trying to stop something that really is not affecting you.
Share your thoughts on DVD piracy, copyright protection, and the ramifications of the DeCSS case in the Loop.
Photo of Martin Garbus by Bruce Davidson
© FEED Inc. 2000
http://www.feedmag.com/re/re340.2.html
introduction: http://www.feedmag.com/re/re340.html
Quoting Garbus: Right now the MPAA has got an order from the court which makes it possible to stop the posting of the DeCSS. The MPAA has now made a motion to expand the injunction to include linking. What I'd like to know is, if links themselves are prohibited, can simply posting the text of the URL itself be prohibited as well? If we get to this extreme, I think we've gone way over the first amendment line.
While many of the libertarians on /. (including myself) may see the merit of the "code is free speech" defense, the fact is that it has little legal merit. The authors of viruses can be prosecuted because that code may present a real danger. Just as the courts have decided to impose limits on verbal expression (i.e. the overused fire in a theater example) that can present a public danger, they will place restrictions on the distribution of code. One of the questions that is raised is: is the *threat* of piracy a public hazard that justifies the restriction on expression.
While we will answer that question one way, the MPAA is sure to present an alternative answer. The fervor with which they advocated the DMCA and prosecuted the DeCSS case indicates that *they* see the free distribution of Digital Media as a threat to their billions in revenue and their shareholders' interests.
This is a simple case. Whether code is a form of expression that is protected is *irrelevant*. The fact is that DeCSS can be used for *legitimate* purposes as previous copyright law defines "fair use" and will thus be permitted to be distributed. This is not a "test case" and 10 years from now will be seen as having little significance.
ByteMyCode.com: A Web 2.0 code sharing community.
(1) Legal unenforceability: In the example you give, assuming for sake of argument that DeCSS is illegal,(*) you're offering to sell an illegal product, not in exchange for money but for a release. It follows that the contract you propose is unenforceable because it is supported by an illegal consideration.
You are correct, although not necessarilly for the correct reason.
One could host one's web page, complete with click-through license, in one of the two American States foolish enough to have passed UCITA legislation (which explicitly makes click-through licenses enforcable).
Then, have the aforementioned "click-through" license on your web page, followed by a link to download DeCSS.
What makes this unenforcable isn't the law, or even the illegality of DeCSS (after all, maybe it is the decoy DeCSS program, which is undisputably legal and merely bears a superfical resemblence to DeCSS, in the similarity of their names). It is the fact that you are a powerless, unrepresented individual on the one hand, going up against a large cartel of corporate conglomerates by whom the government is employed on the other.
Even if such a license were enforcable, the RIAA and the MPAA would simply purchase a new law from congress post haste (a relatively inexpensive proposition), which would then make the license unenforcable, probably retroactively.
Really, until we seize back our government, all of this discussion will be more or less moot.
The Future of Human Evolution: Autonomy