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NY DeCSS Case: Final Briefs Online
Iambic Pentametor writes "Defendants' brief is
here
and plaintiffs' is
here.
Openlaw has very comprehensive coverage including an ongoing discussion commenting on the briefs. The decision by Judge Kaplan is expected probably within a week."
I wonder if net filtering software allows its users to look at "online briefs"
--
Linux MAPI Server!
http://www.openone.com/software/MailOne/
(Exchange Migration HOWTO coming soon)
No matter what the ruling is, what could it do? Even if the websites are found against, all the court could do is assign some improbable damage figure that nobody would collect. The websites would appeal, and the legal system would have another go at it a year from now in appeals court.
If Kaplan rules in favor of the defendants, does that mean that the aggressors will be forced to pay the legal fees of the defense? If not, this whole thing is a lose-lose situation.
Even if the studios end up on the losing side, they just go play a couple rounds of golf and laugh about it over drinks. The defendants, on the other hand, will be stuck with hundreds of thousands of dollars in legal fees.
This case is far from over. It hasn't gotten bloody yet.
Let me get this straight. The kid made a program for himself to see legally purchased DVDs, but since the program could be used for illegal piracy he was sued. By this logic, software makers could sue Gates for including the "copy" command as it could be used for piracy. Anyone remember copy *.* a: b:?
Being with you, it's just one epiphany after another
Well, there are more facets of this case than just the monetary value alone. As far as the legal fees go, I have to agree that the legal fees are pocket change for the studios whereas the EFF is most likely straining its resources to be able to pull this off.
However, there is much more at stake here than just legal fees, and that is legal precedent. If the EFF wins in this case, the studios (and many other people) will lose out in potential profits and the EFF will have made a massive step forward in our rights to reverse engineering and fair use (something which is abused both by consumers and by the corporations in my humble opinion) -- and I suppose we could throw in free speech as well.
Isn't slashdot about: "here's a new technology, here's a new idea, here's a new discovery, here's a review of the above."?
Yes, court cases fall into this somewhat. Like: The idea that napster is liable for the actions of its users, or the idea that reversing/discovering and algorithm could be considered "criminal" by a country you don't even live in and may never have ever visited, and that you could get a ton of flak for it.
But the fact that the case is now being decided uppon by the judge, is something people who wanted to track the case could get from reuters or cnn [ouch the bias, it hurts it hurts].
I mean yeah, its great taht we're days from finding out, but this may be a case where people sort of figured we'd find out sometime, and when that happens it'd be interesting to know how it went down.
I vote that US coporate conglomerates should have no right mandating how or punishing for the way someone elsewhere in the world thinks.
-Daniel
1. UCITA legitimizes shrinkwrap/clickwrap agreements as enforceable contracts.
2. DVDs are shrink-wrapped.
3. Dvds are software (bits is bits, right?).
Therefore, all MPAA has to do is start including a license agreement with DVD, which you accept by breaking the shrinkwrap, which states that you are voluntarily surrendering your right to use the software on anything other thatn a licensed playback device. Presto! Instant contract. And contract law trumps pretty much everything.
Lawyers, am I right, or just blowing smoke?
From the EFF brief:
:)
Plaintiffs allege that privately watching a purchased movie using a disapproved player is a violation of the copyright owner's legal rights; that the mere existence of a Linux DVD player which allows one to watch legitimate movies purchased anywhere on the globe is actionable. We hope that this Court will find that legitimate holders of copyrighted works have an unfettered legal right to privately experience those works (in addition to any fair use rights they may have).
IANAL, but it seems that (indirectly) the EFF is also arguing against regional encoding, in addition to everything ELSE they cover. In essence, if you buy this disc, you should be able to watch it everywhere you'd could possibly desire to. This rocks.
To quote from the defendant's papers:
We agree with plaintiffs and the Court that the authority of the copyright owner is a matter of law, not a matter of fact.
Am I reading this correctly?
That they actually acknowledge that copyrights, et. al. are actually legal fiction that is foisted upon the public at large?
Wow.
No matter what the ruling is, what could it do?
Short answer: Precedent. Already there's caselaw from the Sixth and Ninth Circuits which holds that, in some instances, computer source code can be Constitutionally-protected speech. These cases have revolved only around cryptographic code, though; DeCSS is the first case where computer source code, without any qualifications, has been presented as warranting First Amendment protections.
If the judge rules (as I expect he will) that DeCSS possesses expressive content, a lot of the DMCA will be in jeopardy, and maybe UCITA, too. We (the hacker/geek community) will now have three different legal precedents to stand on in the event that future lawsuits are filed against us. "Don't like our programs?" we can say. "Tough luck! Free Software is Free Speech!"
This will scare the hell out of half the intellectual-property lawyers in the country, and will make the other half giggle with delight.
I don't like 2600. I think that Eric Corley/Emmanuel Goldstein is, mostly, a boil on the ass of the community. But if he gets the right to freely talk about DeCSS and how to circumvent access controls on DVDs (probably the only thing he and I will ever agree on), then I get the right to freely talk about things I find interesting which the Government would rather I didn't.
That, to me, is the most important thing which is coming out of the 2600 trial. I don't give half a damn what happens to Goldstein. I give a damn what happens to me. And if the law will protect Goldstein, how much more will it protect me?
This is the same logic Larry Flynt used in his First Amendment trial. It was good logic then, and it's good logic now.
breaking the shrinkwrap...Presto! Instant contract.
Nope. A shrinkwrap license has never been tested in a serious court case. Given that the "shrinkwrap" approach runs counter to two major currents of contract law { (1) a contract is unenforceable if informed consent is absent (2) shrinkwrap license seems to violate consumer protection laws of many states} , I wouldn't bet that any of these shrinkwrap approaches would survive a serious legal assault
"one treats others with courtesy not because they are gentlemen or gentlewomen, but because you are" --G. Henrichs
This is actually pretty clear cut, with three possible outcomes:
#1. Defendants Win:
The immediate result is widespread beer-drenched parties thrown by open-source/hacker/free-speech types, who cook hamburgers and use the remaining charcoal to burn record execs in effigy. The following day not only is DeCSS available everywhere, it also has a user friendly interface and over 15,000 skins. Within 48 hours there are over 1,500 posts about the subject on slashdot.
#1. Plaintifs Win:
The immediate result is widespread beer-drenched parties thrown by anyone who receives money from the movie industry. During the party the execs start to plan a "Running Man" type picture staring the 2600 crew (which ends with "that bastard Goldstien" being eaten alive by his own computer. The following day there are several thousand people of varying ages either in jail, or on the run trying to avoid incarceration. Within 48 hours there are over 1000 posts about the subject on slashdot (There would be more, but there's only so much bandwidth out of Canada).
#3. One side wins, the other appeals:
The immediate result everyone bitches about the ruling at beer-drenched parties. The following day there are over 1,500 posts about this subject on slashdot.
Bottom line? This lawsuit is nothing but a tool in the conspiracy by Hemos to raise Slashdot traffic. You heard it here first!
The Midnight Watch - All the news that's fit to ridicule:
You have an abnormally low user number for somebody so clueless. Defend your on-topicness. Tell why what you said has to do with the issue of the legality of DeCSS. Perhaps you should have drawn that out more in your post... if you weren't going for #1? Your post was basically worthless.
Free BeOS, runs from a Linux partition
Every United States judge, without exception, is authorized to decide whether or not laws which come before them are Constitutional. The lowest magistrate (the lowest rung on the Federal judicial ladder) can declare laws unconstitutional (they never do this, of course--small worm, big freakin' hook, all that). District judges (the next ladder up) do it more often than magistrates do. Appellate judges are where the real judicial power is exercised; 99.9% of all judicial cases in the United States end at the appellate level.
We hear about Supreme Court decisions because the Supreme Court's jurisdiction is the entire United States, plus all of its territories and holdings. Appellate decisions only affect a few states; District and Magisterial decisions only affect the district in which they preside.
For instance, in Bernstein v. US, coming out of California District Court, District Judge Marilyn Patel declared certain portions of the ITAR/EAR to be unconstitutional. The very instant Judge Patel entered her ruling, those unconstitutional portions of ITAR/EAR were annulled--in fact, the instant she entered her ruling, those portions of ITAR/EAR were retroactively declared to have never existed. (Legally, unconstitutional laws are void "ab initio"--"from the very beginning". It's as if the laws were never passed.)
At some level of the Executive Branch, it was decided to appeal this decision. It went from a California District court to the Ninth Circuit Court of Appeals, which covers most of the West Coast. The Ninth Circuit Court of Appeals affirmed Judge Patel's ruling. Suddenly, those portions of ITAR/EAR were null and void throughout the entire Ninth Circuit.
Had the Executive Branch appealed the decision to the Supreme Court, and the Supreme Court heard the case, and the Supreme Court affirmed Judge Patel's ruling, those portions of ITAR/EAR would have become null and void throughout the entire United States, its territories and holdings.
But, part of large corporate strategy is to run up legal bills. This seems like Mattel's legal strategy. If MPAA sends a nasty note to an ISP, they will shut down the site just to avoid spending thousands on a lawyer.
Fight Spammers!
- Defendant didn't prove that DeCSS is widely available
- Defendant didn't prove that DeCSS would become widely available
- Plaintiff will be really annoyed if defendant wins.
Defendant's points:
- DeCSS provides additional fair use of legitimately obtained copyrighted products
- Nobody has EVER challenged the right of the purchaser to reasonably use a purchased work
- Plaintiff has not shown in any way that DeCSS has affected DVD piracy
- The DeCSS program is a 1st-Amendment-protected description of a scientific process.
Sounds like a slam-dunk for the defense.
Can we get a "-1 Wrong" moderation option?
Unfortunately, the statute could easily be read either way...
It's pretty obvious that it's in the best interest of the MPAA (and other copyright-holding entities) to have as much control as possible over those purchasing and using their content. They have no incentive, financial or otherwise, to preserve the fair use rights of the public.
The interpretation of DMCA advocated by the MPAA's counsel hands them that control on a silver platter, and allows them to prevent both copyright infringement and fair use with the same protection tool.
That's the basic fault of the DMCA: it doesn't make any clear distinction between prevention from copyright infringement and prevention of legitimate fair use of copyrighted material. This is what needs to be fixed, either through the courts or through the Congress.
All we need is something that preserves the legislative protection for tools that protect copyright without affecting fair use, but removes the protection for tools that prevent both infringement and fair use. Maybe like this (of course, IANAL):
In fact, the evidence shows that the Linux argument is a red herring: DeCSS was developed for and runs under the Microsoft Windows operating system. Further, one of the creators of DeCSS, Jon Johansen, admitted that he first provided DeCSS to an Internet Relay Chat ("IRC") room, called "#pcdvd," which is not limited to users of the Linux operating system. (Tr. 632:9-14, 633:1-4 (Johansen)).
What crap is this? Is the lawyer that said it completely uninformed or does he just assume the judge and everyone else to be... The whole idea behind DeCSS was to let people watch dvds on linux, but since the player only works with windows, the necessary decryption (DeCSS) would sorta HAVE to happen with windows and not linux...
Furthermore, the guy also argues that since Johansen first provided DeCSS to an IRC chat and since IRC is not limited to linux that the whole linux fair use thing was just a cover for the nasty, sneaky little hackers...
The fair use of DeCSS is pretty obvious, and i sure hope the judge doesnt ignore it, after all, that would mean that maufactuers of CD burners, dual tape deck stereos, and vcrs can now be sued because their products can be used for "illegal duplication of copyrighted work", even though they have a whole lot of other fair uses as well...
When the world ends, we'll be burnin' one
-- Dave Matthews Band
From the MPAA's brief:
Indeed, defendant Corley (and other defense witnesses) established that: (1) the Content Scramble System ("CSS") is a technological measure that effectively controls access to, and copying of, plaintiffs' copyrighted works...
I would say "not so effectively controls..."
Anyway, I don't have any one specific point, just some thoughts.
My first impression is that the MPAA's looks like a professional legal brief, while the EFF's looks like a dull web-page.
They cite that they have been damaged by DeCSS, because it takes from them: the assurance of protection that CSS gives to their valuable, copyrighted digital content released on DVDs.
That's pretty weak. Much like demanding that your neighbors go around handcuffed. Sure, it restricts them from doing some things, (like watching DVDs on Linux) but it affords you the assurance of protection from being punched.
They follow this by pointing out the threat, as they see it: That with increasing compression techniques (in particular DivX) and hard drive space, movies may find their way into rapid free circulation.
They have a bit of a point there, in a few years, compressed mpeg video may be tossed around like mp3s are now. I don't think that mp3s have eliminated the CD market, nor do I expect DivX to eliminate the DVD market. At the least, there's a bunch of people out there with CD players and DVD Players who don't have bitchin' computers hooked up to the net via broadband and equipped with a terabyte of drive space. Unfortunately, this is a practical argument, not a legal one. As a geek, I keep looking at it from a technological standpoint. As soon as they show you the information, (movie or song) it's yours. You can screen capture video and record audio. It's really that simple. Sure, DeCSS is much more convenient, but it's not going to make a difference as far as copying goes.
This is true...unless it can be shown that the individual would have known about the contract. In this case, the first couple of DVDs you buy, you could get away with it...but after that, you know what to expect when you open the shrinkwrap! Therefore, a shrinkwrap license is valid, provided you've seen one before!
Err....I don't think so. There's nothing to guarantee that the shrinkwrap in one DVD is exactly the same as in another DVD. Maybe you could get away with saying that for the same DVD, but even then, the licenses may change.
-- Ever notice that fast-burning fuse looks exactly the same as slow-burning fuse? I didn't... (Edgar Montrose)
With respect [to Prof. Touretzky], the law does not treat instructions to machines in the same way as it treats political or academic discussions of those instructions, just as it distinguishes between illicit dealing in firearms and literary discussion of committing a crime. No matter how clever one may be in converting code to English or translating it into any other language, DeCSS itself (whether as an executable utility or in source code) is still just a set of unscrambling instructions to a machine, as inexpressive as the numeric combination to the locks to a bank vault. See also Universal City Studios, 82 F. Supp. 2d at 222 ("Executable computer code of the type at issue in this case does little to further traditional First Amendment interests.") And since Professor Touretzky's testimony established that the source code can be readily converted to object code which, in turn, can be used to create the executable utility, the DeCSS source code is just as much a "technology," "device" or "component, or part thereof" within the meaning of the DMCA as is the executable utility. See 17 U.S.C. 1201(a)(2). [excerpt from the plaintiffs' brief, at II. B.]
--
send all spam to theotherwhitemeat@ropine.com
...are on line here.
Ceci n'est pas une sig.
As I read the opening statements of these two briefs a feeling of sadness came over me. The MPAA brief argues rigidly from the form and intent of the DMCA, while the defendants resort to disputing the DMCA's power to render mechanisms of fair use illegal. It was interesting to note that the term "fair use" wasn't present even once in the DMCA's brief.
But sadly, this is all largely irrelevant to our freedoms. It may be that the defendants will win this round, and the Court will permit them and others to engineer and distribute "devices" that subvert copyright protections. But nothing in this case will mitigate the central issue: if CSS hadn't been so weak, we would all still be constrained to the MPAA's anemic idea of consumer rights.
In other words, what good will a victory here do us if IP owners like the MPAA simply protect their materials with strong encryption that isn't likely to be broken by sloppy redistributors? Remember that Jon Johansen only managed to crack CSS because a private key was accidentally left in the clear!
This is an important case as it sets precedent and could determine the viewpoint of future courts, but if this issue never returns to the courtroom because the MPAA does it right in CSS2.0, then what will it have really bought us?
-konstant
Yes! We are all individuals! I'm not!
-konstant
Yes! We are all individuals! I'm not!
read this posting basically a judge can rule a law unconstitutional in thier juristiction. Ie a district judge effects a district, a circuit judge covers a circuit (which usually covers several states). And the supreme court can make a law unconstitutional for the whole country.
Just finished reading plaintiffs arguments. It is worth noting that "Trade Secret" dose not appear in that document at any point.
Translation. They now accept that revers engineering a consumer product cannot no matter how difficult or complex constitute violation of a trade secret.
Of course once you get to that point they need to *own* DeCSS in order to effect any copyright control. They can't actually claim to already own it ( see Trade Secret above ) so they might try to buy it ( Fat chance after Johnny boy got a medal from his president.
The other arguments are just plain lame.
--= Isn't it surprising how badly I spell ?
Section 103(d)(2)(B) of UCITA indicates that UCITA does not apply to agreements (licenses) to "create, perform or perform in, include information in, acquire, use, distribute, modify, reproduce, have access to, adapt, make available, transmit, license, or display: a motion picture, sound recording, musical work, or phonorecord" (emphasis mine). So, the Act explicitly keeps the DVD license issue out of its scope.
Slam dunk! Good work, Garbus.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I have a demoronised mirror of the MPAA brief on my site.
TO BUY A NEW CAR WOULD MAKE YOU SEXUALLY ATTRACTIVE.
But if they do create such devices, the public could reject them, as they did Divx players, as being to constrictive and not worth buying. That said, I agree that technological means should not be allowed to violate consumer's rights any more than legislative means should be allowed to.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
The participants on the Openlaw discussion list have spect a lot of time examining the meaning of the word "authority" in the context of the DCMA. In summary, the MPAA's authority model (player must be licensed) is fundamentally defective for several reasons. It dosn't operate with the authority of the copyright holder. The right is not limited in time as is copyright itself.
Authority to view the work *must* pass with first sale.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
People bitch constantly about Slashdot's bias as it is. If they were to start trying to induce action in /. readers, we'd have a ton of people screaming bloody murder. I, personally, would like to see such things done. I don't consider /. to be an unbiased news source. (Actually, I can't think of any unbiased news sources.) It says what it is, right up front. News for Nerds. Stuff that matters. It was created by a couple of college guys as a place where they could have discussions of stuff that was interesting and important to them. It doesn't claim to be an unbiased news agency, although it does seem to try to be fair usually, and has increasingly done so over time.
I don't think /. should be held to the same standard that we should hold CNN or ABC to. They don't claim to exist for the same reason, and they shouldn't be treated the same. I think it would be fine for /. stories to include "what you can do" links and information. They aren't making anyone doing anything. They're just giving you useful links in case you decide to use them.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
To answer your question, region coding is not mandatory. Non-region coded DVDs probably use 0 or 7 as the region to indicate that they're playable on all DVD players. (Don't quote me on the method of unlocking, I just know it's not mandatory)
And just to be a nitpicky SOB, DVD players sold in New Zealand are required by law to be capable of playing DVDs from all regions.
Basically, because he's misappropriating the term `hacker' and promulgating this distorted vision of hackers as being malcontents, ne'er-do-wells and geeks.
I once picked up a copy of 2600 just to see what the big fuss was about. When I leafed through it, I didn't find much that was, in my mind, hackish. There was an article about boxes and phreaking; about the NPA-NXX system of phone number allocation; about how to override the environmental controls of a Best Buy so to make everything a sweltering ninety-nine degrees.
Even though there's a disclaimer that says "2600 does not endorse any illegal activities", it's still an inescapable conclusion that most of the articles which appear in 2600 are written by petty criminals--extremely petty criminals.
There's hackish glory in knowing how phone numbers are allocated and how the NPA-NXX system works, or in knowing the security holes in a stock Solaris 2.7 installation, or--etcetera. Fill in the blank.
I work in information security IRL, and I know a lot of these things. Some of my best friends know a lot of these things. Sometimes, we sit down and have a couple of beers and talk about exploits, and even do penetration tests--against boxes we own, in highly controlled environments.
The typical 2600 article is written by, and for, frustrated techno-turks who have an axe to grind against society in some regard, and gets a vicarious thrill out of making a Best Buy a sweltering inferno for its customers. I don't see that there's anything commendable in that. I think people who do those things are criminals, hooligans and petty vandals--and I think those who encourage such behavior must shoulder some of the responsibility.
Is it legal to encourage that sort of behavior? Yes. That doesn't mean it's right.
The Oppenheimer defense ("I just built the damn thing, you're the one who's responsible for how you use it!") only works if (a) your creation has significant lawful use, and (b) you don't encourage irrational or illegal uses.
2600 claims that it doesn't encourage these uses. I think that a thorough reading of any issue will quickly show that their disclaimer is there strictly for legal protection, and they don't mean a damn word of it.
That's why I think Goldstein is a boil on the ass of the universe.
</RANT>
A matter of law must be decided by a judge, a matter of fact must be decided by a jury. Agreeing with the plaintiff here means that they aren't asking for a jury's verdict on the authority of the copyright holder. Thus, they're agreeing that the judge's opinion is all that matters.
If there is some hole in that statement, perhaps someone who is a lawyer can fill it?
Nels
See what I've been reading.
I urge every one of you to check out:
Joint Study Required by Section 104 of the Digital Millennium Copyright Act
And especially Przemek Klosowski's submission.
Good luck to 2600 and the EFF!
Geist
The greatest trick the devil ever pulled was convincing the world that he doesn't exist.
Which is to say the number 1 reason high level languages were invented was to allow a programmer to come in 6 months after you leave the company and have a chance in hell of understanding what exactly you were doing with your code.
In other words, a compiled program might be a device, but a C program is a book.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Uh-huh... So, this means that furnace heating oil should be made illegal... Who cares if it's primary purpose is to heat a house. You can:
You cannot take judicial remedies for crimes that have not yet been committed. Just as equipment with legal purposes cannot be outlawed because they can ALSO be used illegally... (Lockpicks, for example.)
The MPAA doesn't have a leg to stand on. If by some miracle they win this round, this will most certainly be struck down by a court of appeals (or the supreme court, if it gets that far.)
Another non-functioning site was "uncertainty.microsoft.com."
The purpose of that site was not known.
I would have thought that this process would have had the same result as the analysis of Lord Dorwin's assurances in Foundation -- nothing would be left.
/.
/. If the government wants us to respect the law, it should set a better example.
I think it's about time that copyright is thrown out on the basis that it's unworkable. China might even be able to get through history without ever having to implement copyright...
Magistrates are NOT Article III Judges, and are appointed for limited terms. They do not issue Orders that are binding, but Reports and Recommendations that, unless challenged, are typically rubber stamped by District Court Judges.
The point you make, though, is quite accurate -- since Marbury v. Madison, it has been quite clear that judicial review may occur at any level in the Article III Judiciary. The confidence Article III judges have comes, in large part, from their lifetime tenure -- arguably extant for precisely that purpose.
But don't get too hepped up by the trial court's remarks suggesting First Amendment limitations to the DMCA -- I have frequently seen judges intending to rule one way to begin by making statements suggesting he/she was leaning the other -- if only to seem more judicious.
This may be particularly true here, where the judge has been asked to recuse himself on grounds of conflicts of interest and an allegedly strong prejudice against the defendants.
Time will tell what word will come.
Looking at the OpenLaw debate (which I can follow only about two-thirds of, being a UK lawyer and unfamiliar with the DMCA) I note that in only a couple of days m'learned colleagues have posted pages and pages of pettifogging pedantry and debate.
Ladies and gentlemen of the /. community, it is at times like these that I am truly proud of the legal community.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Yes, we were. B&N has the one-click suit against Amazon.com, remember?
Free BeOS, runs from a Linux partition
-dB
"It if was easy to do, we'd find someone cheaper than you to do it."
The MPAA's DeCSS post-brief is really quite interesting. It shows how much power the DMCA really has. And its a lot.
:
One point about this whole case is that the DMCA out laws devices that CIRCUMVENT encryption schemes that protect copyrighted works.
DeCSS does not do this.
DeCSS DECRYPTS the encrpytion scheme.
DECRYPT does not equal CIRCUMVENT.
Another interesting quote from the MPAA's brief is this
If DeCSS is "speech" immune from any regulation, then no device that can be embodied in computer software could ever be regulated by Congress. That is clearly not the case. Indeed, Congress intended that unlawful "devices" within the meaning of the anti-trafficking provisions would include any "technology measure" meeting the statutory definition, specifically including computer code.
They are assuming what Congress meant something. Isn't that the court's job?
Silly MPAA, greedy facism is for dictators!
-Fred
"Nobody ever went broke underestimating the intelligence of the American Public." - H.L. Mencken
Cool! I wasn't aware of that either.
:-)
Somewhat open to abuse though I expect
"Give the anarchist a cigarette"
A little planning goes a long way...