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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/
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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.
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.
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:
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.
- 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?
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.
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!
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.
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
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 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...