NYT On DeCSS Case

The New York Times has a nice summary of the DeCSS case and the issues at stake with the Digital Millennium Copyright Act. Reporter Amy Harmon managed to put together the facts correctly, probably because she didn't spend too much time talking to the plaintiff's lawyers. There's a nice picture of Emmanuel Goldstein and Macki from 2600.com (mislabeled as Jon Johansen). See our last story for transcripts and other info from the trial. (Last day to sign up to vote in the ICANN elections!) Update: 07/31 15:32 by michael : The NYT has changed out the single picture of Macki and Goldstein to two separate pictures of Johansen and Goldstein. It's good to know they read slashdot. :)

Comments

DeCSS and the net

[ndpatel]

what the movie companies are totally failing to realize is that most people aren't going to start watching movies on ther pc's. most people want to kick back on their overstuffed couch, put their feet up, pop a can o' miller and watch a flick on the >19" boob tube, not sit in an office chair and watch a so-crystal-clear-it's sterile movie on their 17' monitor. there's something to be said for the fuzzy overwarm color tones of a good vcr/dvd console player plugged into a regular tv, and i don't think the average consumer has enough time, energy, or patience to rig up a scan converter or start burning VCD's of pirated movies, no matter how much bandwidth they have (where greater bandwidth= more rampant piracy). besides, last i checked, a program like astarte's m,pack for turning mpegs into burnable vcd streams cost $695. the people who pay $695 so they can watch a crappy handycam rendition of the matrix at vcd quality--the mpaa isn't going to ever stop them.

what the mpaa needs to focus on is having dvd permeate the media universe: removal of region codes so that consumers can purchase and playback dvd's anywhere, sanctioned playback software for every platform, dvd-roms that serves a purpose other than slick self-promotion, etc, etc. allowing dvd to be more widespread will make it the consumer's first choice in media, sidestepping piracy concerns. after all, it's going to be a while before the price of burning a dvd comes down to casual pricay levels, a la cd-r.

Re:DeCSS and the net

[jafuser]

It's true that most people will not watch net-copied movies on their computers, or go through the effort to have their computer project the movie into their home entertainment system. But that's just because these things haven't gotten easy yet. Eventually our computers will be connected to our home entertainment systems to do this easily, and many people will have internet connections which are fast enough that it takes less time to download the movie than to play it.

This is what worries the MPAA - not that people are doing it now, but that *lots* of people will be doing it later if it is left unchecked. And what they are worried about most is not the piracy itself, but their loss of their control. They have spent a considerable amount of time (perhaps decades) refining their marketing and distribution techniques to maximize their income. They can predict fairly well how much money they will make if they create a movie, put it in theatres, then wait x number of months and sell the videos for y number of dollars. They have mastered their marketing art into a finely-tuned equation of x's, y's, and dozens of other variables to make the maximum profit possible.

If the free excahnge of movies hits the mass public, they will have to change their method of distribution. Suddenly, their established marketing equations will not work anymore. There will be hundreds of variables instead of dozens.

If or when this happens, they will still make enormous profits. People will still go to theatres, people will still buy the videos. If the movie companies keep their present set of distribution restrictions without any flexability, then the pirates (most of which are fans) will continue to be large in numbers. Since these fans they can't put their money down for what they want *right now*, they will take time to find "alternate sources". To minimize the piracy, the movie companies will have to make all of their material available in as many formats as possible as soon as possible after the movie is released. They won't be able to place as many of their profit-motivated restrictions on their content. No more "waiting six months" for the christmas season to release videos.

But they don't know what will happen if they switch to this system, so it's just best for them to just stomp out anything else which threatens their legacy. It always comes down to companies losing a small amount of control when the 'net clashes with these companies. Aged businesses are afraid of losing their long-running legacy of marketing and distribution, which they have embraced for so long that they just can't imagine risking themselves to something completely different; so in the end, they wind up fighting and winning batters while losing the war, rather than embracing the internet and putting the pirates out of a job.

I read every line of that trial, my prediction....

[weave]

FWIW, I read the entire transcription of the trail. I have a new respect for Judge Kaplan. Lawyers on both sides were inarticulate and the judge often had to stop them and ask the questions for them (he has more freedoms to do so since it isn't a jury trial). He also has an interesting sense of humor and he often explains this as analogies, and they are usually pretty good.

With that in mind, his job is to uphold the law and the new law is DMCA, like it or not. He even mention that, if the DMCA conflicts with prior laws, like anti-trust laws, then the DMCA must take precedence in those areas since it is newer.

My prediction: He'll rule that 2600 violated no laws by posting the code under freedom of the press and speech, but that any use of code that gets around CSS is a violation of the law, therefore any use of DeCSS is actionable, including putting chunks of it in any LIVID software.

He'll then sternly warn the MPAA that they better make licenses available for LIVID if they intend that the appelate courts take them seriously.

The one thing I didn't see that was missing was any testimony about the importance of "free" (speech) software. Those of you who hate the FSF better stand up and notice. Binary-only DVD players may end up being available for our fave free *NIX distros, and they may even be free (beer), but they won't be free (speech) and there won't be any free (speech) DVD players available, at least in the U.S., without breaking the law -- and that issue didn't come up in the trial.

Then we'll all be further split into factions and have further arguments about whether DVD players should be in any *NIX distro, why Debian is anal, and on and on. Then we'll see even more binary-only releases or even more "open source" with restrictive redistribution agreements due to license agreements to comply with patents and DMCA issues.

Then again, I could be wrong! :)

love that caption

[SEAL]

The caption below the picture states:

Jon Johansen, above left, of Norway, helped develop computer code to crack encrypted DVD's that Eric Corley, above right, posted on his Web site.

Nice of the reporter to use the English language in an ambiguous way. I wonder if anyone checked 2600's site for DVDs? :)

Best regards,

SEAL

NYT violates copyright?

[Jett]

Anyone else notice the picture of the t-shirt with the DeCSS code on it... Looks like the New York Times is doing what 2600/Emanuel Goldstein is being taken to court over. Funny how that works.

Re:Why doesn't Warner Brothers sue the MPAA?

[wendy]

If I could advise her, I'd tell that those copyright holder then just should refrain from producing digital material.

You can advise the Copyright Office: submit a comment in the upcoming discussion of first sale and archival copying and the DMCA. The EFF has a copy of the Request for Comments. Comments are due this Friday at 5 p.m.

The first sale doctrine (17 U.S.C. s 109) states that a copyright owner cannot prohibit resale of a copy of a work he has sold, and has traditionally been read to imply that copyright owners cannot control the uses of those sold copies. Does the Digital Millennium Copyright Act give publishers persistent, after-sale control of their works, or should first sale still limit that power?

FWIW, I argue that the loss of control on first sale is an integral part of the constitutional copyright balance that that DMCA cannot abrogate. In exchange for copyright protection on published works, the copyright holder must give public access. (And yes, if they're not willing to give us that access in digital media, studios should keep publishing in analog.)

Join us at Openlaw/DVD for more discussion of the DeCSS cases and these broader copyright issues.

A History Lesson

[eagle_grinder]

Ms. Peters has been weighing arguments by copyright holders who contend they will have no incentive to produce digital material without the assurance of such protection


Conversation between Big Media and their programmer consultant, circa 1990

Big time Author / MPAA bigwig / RIAA fatcat :
"We'll produce digital material if and only if it is protected by the first amendment and copyright law."

Programmer:
Sounds good. But isn't it hypocritical that YOUR media, when changed into 1's and 0's, is protected, but MY media, which, in the form of .h, .c, .java files, and binary executables, ISN'T protected?

But that would also mean that the digital algorithm used to encrypt your format ISN'T protected, meaning anyone can flat out copy it and distribute it. Rampant piracy wound ensue.

Big time Author / MPAA bigwig / RIAA fatcat :
You're right. All digital media should be protected.

Programmer :
In that case, The "hackers" will just reverse engineer your algorithm under fair use and as before, distribute it.

Did anyone guess what the industry fatcats said next?
If you said "Buy legislation that eliminates fair use from digital media" You've correctly identified the DMCA! BOB, TELL THEM WHAT THEY'VE WON!

Why doesn't Warner Brothers sue the MPAA?

[rheise]

"Without the guarantee of that protection, a Warner Brothers executive testified in court, the industry would never have begun releasing movies in digital format."

Then why doesn't Warner Brothers sue the MPAA (or dvdcca) for selling them a dodgy protection mechism that could never have worked? They did get that "guarantee" they're talking about, right?

No matter how hard you try, you can't prevent people from making perfect copies of digital data. You can however prevent people from reading it if you have a brain to use encryption properly (why the heck are they making keys available before people are allowed to use them?)

http://www.progsoc.uts.edu.au/~rheise/

Re:Why doesn't Warner Brothers sue the MPAA?

[Baki]

No matter how hard you try, you can't prevent people from making perfect copies of digital data.

In the NYT article, the head of the United States Copyright Office, Ms. Peters, says it is a problem that copyright holder won't have an incentive to produce digital material without assurance of protection.

If I could advice her, I'd tell that those copyright holder then just should refrain from producing digital material.

If the choice would really be between ending fair use and harming freedom of speech, or not producing digital material, the choice is easy: the latter.

No company is forced to produce their material digitally. If the studios are so worried, then they should just stick to VHS tapes.

Of course, presented with such a choice, they would have to reveal their true motives: They would not want to stick to VHS, since what they really want is to enlarge their influence and control.

Re:this sums up the slashdot journalistic ethos

[jellicle]

Actually, I lauded the writer for researching both sides of the story. Probably 50% of the stories about DeCSS have been written by reading the Plaintiff's press releases; another 40% have been written by trying to get both sides but failing substantially; and maybe 10% have accurately portrayed the whole story. This story is in that last 10%, and I was happy.

I should probably avoid these sorts of throw-away one-liners in the future since it seems there's always someone in the slashdot audience who either doesn't read or doesn't parse what I said, or in some other way fails to understand.

I should note for the record that slashdot has had a number of story submissions for stories whose writers had failed to get the MPAA's side; that is, they were essentially rants and propaganda, but written from an anti-MPAA point of view. I wouldn't want to run those in the same way as I wouldn't want to run something written from MPAA press releases - they're both crap, IMHO.

--
Michael Sims-michael at slashdot.org

We need a hardware player that uses DeCSS!!!

[BeBoxer]

What would really be great to make the real issues apparent is for some consumer electronics manufacturer to produce a standard DVD player. But, instead of getting a CSS license, they could use the source to DeCSS.

Right now, the reality is that a program like DeCSS can be used to pirate DVD's. That makes it easy to paint it with the "evil" brush. However, if there was a hardware DVD player that was functionally just like an "authorized" DVD player, they couldn't use that tact. Provide an Apex-like menu to disable the region controls (but NOT macrovision), and the MPAA would be forced to admit that CSS and DMCA go far beyond copying and piracy.

Let's take the fictional scenario a bit further. Acme Inc makes a DVD player that is just like all the other home players, but doesn't include region controls. It also doesn't have a CSS license. Let's further suppose that the MPAA takes them to court for DMCA violations. What would the arguments look like in this case? If the MPAA said that CSS was an anti-copying mechanism, the question becomes why does Acme Inc. have to use it if you aren't copying the DVD? If they try to claim that the player is a piracy tool, you could point out that it doesn't enable piracy any more than a Sony or RCA DVD player.

So what would this player be doing that's "wrong"? Nothing. Well, almost nothing. By not having region controls, it's a way around the artificial trade barriers that the MPAA are enforcing to enrich themselves. And so the real issue would come to light before the customers. It's not about piracy. It's not about copying. It's about the DMCA being used as a shelf to place arbitrary rules and restrictions on. If this trial was about the MPAA's right to disable the FF button on your DVD player during ads, and the MPAA's right to restrict free trade via region encoding, the public's opinion of the MPAA and the DMCA might be a little less rosy.