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Civil Disobedience and DeCSS
The EFF has put out a series of Updates covering the case day-by-day as it progresses. The most recent one or two aren't on the website yet, but should be soon.
2600 is keeping a complete archive of case-related documents, including transcripts. The transcripts are serious time-killers - it takes a long time to read 7 hours of testimony. But if you've got some time on your hands, they make good reading. Nothing beats first-generation source materials.
The New York Times has a nice summary in their Cyber Law section. Concentrates on the surprise testimony of Jon Johansen on Thursday, but touches on other issues as well.
The people at Harvard's Openlaw project have been scrutinizing the trial as it unfolds. They've collected a bunch of links to press coverage of the trial, and it's frankly pretty interesting to see the substantial differences between publications - almost as if they were watching different trials, one about the freedom to view DVD's as you choose, and a completely different trial about pirates, freebooters, and buccaneers. Their DVD-discuss mailing list often has insightful commentary.
So now that you've had a chance to read up on the trial, let's cut to the chase: the defendants are going to lose. (Note that the decision in the case may not come for a few weeks yet.) No doubt Monday-morning quarterbacks are already primed for action, and the MPAA's PR people have already prepared their after-action press releases calling 2600 a bunch of pirates, thieves, and baby-stealers. Some people will claim it was due to Judge Kaplan's evident bias (which has now degenerated into the lawyerly equivalent of a flame-war between the defense lead attorney Martin Garbus and the Judge); some will point out that any judge could have interpreted the statute as rigidly as Kaplan, with or without bias. Regardless of who wins, the case will be appealed, so this matter will be finally settled in the Court of Appeals or perhaps even the Supreme Court.
In the meantime, I'm going to take the liberty of reposting an email from John Perry Barlow. I don't think he'll mind.
Dave,
Thanks for the LA Times link. I like best the delicious irony of the following:
"This is a very profound moment historically," Time Warner President Richard Parsons says. "This isn't just about a bunch of kids stealing music. It's about an assault on everything that constitutes the cultural expression of our society. If we fail to protect and preserve our intellectual property system, the culture will atrophy. And corporations won't be the only ones hurt. Artists will have no incentive to create. Worst-case scenario: The country will end up in a sort of cultural Dark Ages."
A profound moment, indeed. Indeed, it is an assault on everything that has stifled the cultural expression of our society. It's an assault on the system that stole every dime The Chambers Brothers ever made while grotesquely enriching Brittany Spears.
There is certainly the potential for a cultural Dark Age here, by which I don't simply mean what would follow the death of Time-Warner. Rather, I refer to the very real possibility that Time-Warner and the rest of its loathsome kind will die with most of the expressive genius of the 20th Century buried with them, embedded in their corpses by their last success: using copyright to prevent the digitization and, hence, perpetuation of all that creation.
Only massive civil disobedience will prevent this ugly future. Speaking as someone who has created a lot of "intellectual property," I can assure you that my primary incentive was the possibility that what passed through my heart would be heard. I want it to be available to my great grandchildren. But they will never hear it unless it's stored in some other medium than the material objects the record industry manufactured, all of which will be as mute as stones by then.
Of course, I wanted to be paid for it, and I was. Just as Mozart, Beethoven, Bach, and countless others were paid, despite the absence of copyright protection.
The only people who are likely to lose the lesser incentive of wealth will be the likes of Richard Parsons. His loss will be our gain. Unless, of course, he wins.
Mad as hell,
Barlow
I find it kind of frightening that people's comprehension of the pre-segregation world is so confused that they can equate violating fundamental rights of movement and association with the right to watch a movie.
Banning DeCSS isn't about "the right to watch a movie", any more than segregated water fountains are about "the right to get a drink of water".
The latter is about discrimination, restricting freedom of association, and the removal of rights from a minority of society by an ignorant majority. The former is about maintaining a stranglehold on intellectual property, restricting freedom of speech (If I can't tell someone, in English or in C, how to bypass a broken encryption scheme, yes, it's restricting freedom of speech), and the removal of rights from a majority of society (the hundreds of millions of consumers who *used* to have "fair use rights" guaranteed by the supreme court) by a minority (the IP providers who can make more money off of restricting content distribution channels, controlling content player manufacturers, and moving even digital data to read-only and pay-per-use systems).
Granted, segregation was grossly worse, but with centuries of evil tradition to back it up and a subtle (and often too unsubtle) population-wide bigotry, that wasn't surprising. And racial relations improved, and are still gradually (too gradually for some) improving.
On the other hand, intellectual property controls are getting worse, and fast. The court cases that made VCRs, dubbing between media formats, personal MP3 players, etc. illegal are all pretty much moot now, since we've got this shiny new DMCA law that wasn't around back then. Even EULAs (you know, those "contracts" you "agreed to" without signing or reading anything) may become binding, and all the ridiculous restrictions therein take effect. The idea being fought here is the idea that you can purchase a data disc, "own" that disc, entertain yourself or run your company using the data on that disc, but have no control whatsoever over it except what the previous owner gives you, revokable at any time you try to move that data to a new medium, play it with an unauthorized system, publish incriminating benchmarks, or do anything else the previous owner doesn't like. Does that not worry you a little bit?
> refusing to comply with the law is still a crime whether it is keeping DeCSS on your website or murdering small children...
..or sitting at the front of the bus.
-- Don't Tase me, bro!
I'm sorry that people can't play their DVD's on Linux. I really am. But comparing your ability to watch a movie to someone's ability to make a living for themselves, to attend a decent school- that is a confusion of scale that I just don't understand.
And yes, I do appreciate the intellectual property cosiderations. I think that the DMCA is junk, and I would love it if more manufacturers would embrace open standards. But if you don't like it, why not abandon it? You buy a media format knowing what platforms it works on. No one buys Betamax expecting it was their god given right to have it work in a VHS machine. So DVD doesn't work on your machine? Screw 'em. Don't buy DVD's. Watch regular videotapes. It might inconvenience you, but not nearly as much as minorities were "inconvenienced" by generations of segregation, prejudice, and violence. If enough people drop it, the manufacturers will relent, or the format will die.
But there is no need to demean someone else's struggles by comparing the life and death of a good percentage of the American population to the tribulations of a group of movie buffs.
"Sweet creeping zombie Jesus!"
what if time-warner and the rest of the media conglomerates died? what would happen? how would we get our daily dose of standardized, nutritious, 100% USDRA of important information (all in a conveniently wrapped up package with a bow)? Wow, that was a horrible sentence, I'll try to be more coherent from here on out.
Anyways, what would happen if the massive media machines that puss Britney Spears and N'Sync on us went the way of the dinosaurs? Let's think about this for a moment. There wouldn't be any huge parent companies anymore (at least temporarily). We would all get our news from smaller, independent outlets. We would, of course, have to decide for ourselves on the credibility of said news outlets. That in and of itself is a scary thought, we would have to make an important decision with information that we would have to go out and gather ourselves. We wouldn't get everything served to us all nicely tied together on a silver platter with a certificate of authenticity from whatever conglomerate we went to for that information.
What effect would this have on the music industry specifically? Well, if we lost the conglomerates we would lose the massive marketing machines. And since there is no longer a massive conglomerate we could assume that we would no longer be bombarded with identical images of how everyone is supposed to be (from tv, movies and music). So, it's feasible that the massive appeal of teeny-bopper music and celebrities may decrease simply because there wouldn't be a concerted effort on the part of the media to inundate us with images of how we should want to look and act.
Of course, there is a frightening "other side" of that coin. What if, in the absence of any media conglomerates, in a world of thousands of independent media and news stations, companies and outlets, we were still bombarded with tv's and movies that basically amounted to watching people more attractive than us make out with other people more attractive that us, and complain about the difficulties of being attractive and popular? If that type of entertainment (and I use the term entertainment loosely) persisted with a myriad of independent stations...well I'd give up all hope on the human race right then and there and go live in a cave.
a cave with a generator and a computer to play games on of course. I'm only human.
Moller
EFF DVD Update: July 20, 2000
0 720_ny_trial_transcript.html
. html
/ cyberlaw/21law.html
, 7070_7,00.html
Universal City Studios v. 2600 Magazine
EFF Fights Movie Studios' Attempt to Monopolize DVD Players
Johansen Shines on Witness Stand in Defense of his Software
Jon Johansen, the Norwegian teen-ager who created DeCSS, the software at the heart of this case, took the witness stand Thursday morning to testify for the defense. Johansen explained that he was attempting to build a DVD player for Linux when he and two other members of the group MoRE developed the code. He also explained that DeCSS was written as a Windows executable file because the project had to be tested first on Windows since Linux could not read a DVDs UDF files. This testimony blew a huge hole in both the movie studios' and the judge's reasoning who assumed that because the code was written for Windows it had nothing to do with developing a Linux DVD player, as EFF's defense team has claimed for months.
The courageous teen also revealed that the MPAA filed charges against Jon and his father Per, instigating the Norwegian Economic Crime Unit to ask Jon to answer questions at the police station in January 2000. His testimony revealed a flaw in the judge's thinking, who has previously stated in several opinions that the teen was arrested and has inferred guilt therefrom. Not only was Johansen never arrested for developing the software, the Norwegian government awarded Jon a prestigious award for his excellent grades in high school and his contribution to society for creating DeCSS. Although it did not come out in court today, the Norwegian parliament has also issued the young teen a formal apology for the treatment he has undergone as a result of publishing the code.
In stark contrast to the veracity and integrity Johansen displayed on the witness stand in the face of a powerful industry trying to crush him, the head of the MPAA's world-wide anti-piracy effort Mikhail Reider testified next. The MPAA investigator who was previously an intelligence officer for the DEA and FBI gave testimony replete with "I can't recall", "I don't know", and "I can't remember" to the most basic questions involving the MPAA's investigative efforts in this case, reminiscent of the Jack Valenti deposition. The credibility and truthfulness of this witness was called into further doubt when shown and asked about internal MPAA reports sent to her that contradicted her testimony and were obtained by EFF's defense team through discovery battles. At the conclusion of Reider's testimony, the Plaintiff's rested their case.
EFF's defense team called Edward Felton to the witness stand who is an expert on technology and testified for the Department of Justice in its case against Microsoft. Felton, who likened "hacking" to "tinkering" explained that the public is ultimately served by the disclosure of information learned from publishing the results of encryption research and security testing. He also testified to the expressive nature of object code and that he can read it and encourages his students to read and write it as part of their education. "In addition to executing it, you can learn a lot from it," stated one of the world's most highly respected computer experts.
Journalist and publisher of 2600 Magazine Eric Corley, who is more commonly known by his pen name, Emmanuel Goldstein took the stand in his own defense at the late afternoon and will return first thing Thursday morning at 9:00. Goldstein explained many of the important contributions to computer security, technology innovation, and the protection of privacy that his magazine was responsible for since its creation in 1984. He also described his extensive journalistic background which includes having been published in the NY Times and the Wall Street Journal among countless others and testifying before Congress on technology issues.
Judge Kaplan provided some sense of his thinking saying that Web publisher 2600.com had a reasonably strong case that the issuance a permanent injunction against it was a futile act due to the mass proliferation of the software. Fond of analogies, the judge stated the defense had a reasonably strong case for the proposition that the barn is unlocked and this horse is out. (See pulled quote from transcript below).
In response to questions regarding the movie studios' right to control who can make DVD players, the judge gave some indication that he believed the DMCA may over-rule antitrust law in the U.S., something to be found no where in the legislative history of the statute.
Thursday morning, Emmanuel Goldstein will complete his testimony with the cross examination of him by Proskaur lawyer Leon Gold. EFF's defense team also expects to call Matt Pavlovich, a developer of open source DVD player tools and Professor Peterson of Princeton University's Computer Science department to the stand.
>From trial transcript of July 20, 2000, Pages 670-1
17 Now, it seems to me also that what the MPAA wants is
18 a legal determination that unlocking this barn was illegal,
19 and so the next guy who considers unlocking another barn is
20 going to have something serious to think about. I suspect you
21 are also asking me to issue an injunction against the guy who
22 unlocked this barn not to unlock it again even though there is
23 no horse in it. So, you know, I don't know that this witness
24 has any light to shed on that subject.
Page 674:
6 courts have said for 300 years, at least that courts of
7 equity ought not to use the equitable power of injunction to
8 try to accomplish the impossible or to perform something which
9 is entirely futile, and therefore, in the exercise of
10 discretion, given the broad prevalence of this particular
11 utility, this time the court declines to issue the injunction
12 because it would do no practical good.
Transcript of today's hearing:
http://www.eff.org/IP/Video/MPAA_DVD_cases/2000
An index of the DVD updates can be found at:
http://www.eff.org/IP/Video/dvd_updates_archive
You can subscribe to EFF's mailing list to receive the regular
DVD updates. To subscribe, email
and put this in the body: subscribe cafe-news
EFF's archive of MPAA v 2600 litigation:
http://www.eff.org/IP/Video/MPAA_DVD_cases/
RELATED COVERAGE:
Norwegian Teenager Appears at Hacker Trial He Sparked
By Carl Kaplan, NY Times
http://www.nytimes.com/library/tech/00/07/cyber
(This is one of the best articles yet written about this case).
DVD-Hacker Trial Judge Says Horsefeathers to Movie Studios' Injunction Demands
By Greg Lindsay, Inside.com
http://www.inside.com/story/Story_Cached/0,2770
"Mary had a crypto key, she kept it in escrow, and everything that Mary said, the Feds were sure to know."
I have to speak personally here, as a musician - moreso as one that does not get paid. I do not create my art (music) for the hopes of getting paid for it. Money is not my "incentive" to create. I create because I am compelled to. I cannot not create. It is something metaphysical, something bigger than myself that drives my need to express myself. I don't do it for money.
That said, if I was getting paid for it, I could quit my day job and do a whole lot more of it. I would love to get paid for it. But that is not WHY I do it.
wish
---
Baloney!!! The reason that our culture goes anywhere is because future developments are built off of ideas that come before. This is like saying that "Just because you learned how to read doesn't mean that you should be able to write." Sadly, I don't know what the lowly unwashed masses can do to prevent this.