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DVD/DeCSS: MPAA Wins In New York
A quote from the conclusion:
VI. ConclusionIn the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.
Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era.
Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs? favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment. Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory relief.
SO ORDERED.
Dated: August 17, 2000
The judge was, however, confused by MPAA rhetoric about the distinction between copying and merely accessing. There is no law against accessing what you already own. DeCSS is a tool for accessing, not copying. When used for accessing the information you already own a legitimate copy of, then its use is legal in that no law exists to prohibit it.
The MPAA is relying on misinformation to win this. You can see the misinformation in every statement they make where they claim DeCSS allows copying. As you should know, DeCSS allows access to bypass the encryption. But a DVD player does that, too, with very slightly less quality.
The mere fact that we accept lossy compression means we accept less that perfect reproduction as long as that reproduction does not continue to degrade. I could frame capture a DVD movie from a DVD player, re-digitize it, and it will be somewhat less quality than the original, but the digital copy will not degrade any further. That copy could then be illegally distributed and it would remain at that quality level throughout the entire tree of distribution.
Likewise, the originally encrypted version can be duplicated, and you end up with a perfect copy with the encryption intact. The encryption still means you have to decrypt it, but you now have a mechanism whereby the movie producers are not rewarded for their efforts, and DeCSS is not even involved in this. Copying can be done without DeCSS.
DeCSS has a legitimate purpose (viewing what one already owns by having legally purchased it and rewarded the movie producers), and does not significantly contribute to illegitimate purposes (since it is possible to access acceptable clear copies, as well as make duplicates of the encrypted copy, all without DeCSS). The facts of this case are that the facts have been manipulated by the MPAA.
I am not a supporter of piracy. If the MPAA had a legitimate desire to prevent piracy, they would focus on the piracy that takes place, rather than focusing on a tool that allows them to discriminate against me because I choose to not use crappy software from Redmond Washington. Sadly, the court victory means nothing because it won't stop or even reduce piracy. Mostly likely piracy will go up, and I would not be surprised if it triples or more. And in the mean time lots of people like myself will be boycotting not only DVD movies, but all movies produced by MPAA members. It's time to check out your local art theatre or maybe even a real stage play.
now we need to go OSS in diesel cars
I don't think the defense made that statement in court, but the plaintiffs were able to convince the judge that this was, in fact, the case.
Moreover, if you read the judgement (nobody much here seems to have done this, however), Judge Kaplan thought the strongest aspect of the defendent's case was not the "legitimate player" aspect per se, but the possibility that the situation without the availability of DeCSS would prevent fair use of the copyrighted works encrypted under CSS. Indeed, Kaplan points out that this kind of argument was one of the biggest controversies involved in the passage of the DMCA, and that the act is a compromise of sorts. But over-ruling the DMCA was certainly not his job. Kaplan's job was to decide whether the DMCA would apply in this case (it did), and if the plaintiffs were entitled to any damages if the DMCA had been violated (it was violated, but all he gave them was court costs rather than attorneys fees).
The presumed appeal here won't be on the facts of whether or not the DMCA was the correct statute to use to grant a permanent injunction on the posting of DeCSS , but whether the "compromise" to fair uses of copyrighted work posed by the DMCA is, in fact, unconstitutional. That would be a much more interesting case, but not the case the judge was in any position to decide.
Well, I think so; I am not a lawyer. I'm crossing my fingers that Doc Hawke, Esq., will post something more informative on this.
Babar
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.
While there certainly are those on the DeCCS side who may come off this way, it misses the issue by a mile. DeCCS doesn't "break into. .
For people paying attention to the trial, is this misunderstanding due to a bad job by the defense lawyers, or is the judge just an idiot?
The judge was NOT a consultant for the MPAA. A lawfirm he was somehow associated with employed some lawyers who did some consulting for the MPAA. I was furious when I first read that, but after some research I found out that it really wasn't a big deal.
Did judge Kaplan miss the point? Yeah. Was he biased? No.
-B
I don't find that funny.
MSK
It is bizarre that a judge would include in his conclusion statements about the beliefs of plaintiffs and defendants. Isn't the whole point of blind justice that decision is made based on actions, not the personal beliefs of those who act?
The judge indicates that he clearly took into account the intent of 2600 to distribute DeCSS to be used for other than fair use. Also, he cites there posting of links to DeCSS to another example of 2600's intent to get other to not only download DeCSS but to use to rip DVDs for other than fair use.
Intent (ie the belief of the defendant/s) has always been a necessary element of proving a crime has been committed. That is why when you kill someone in an auto accident while obeying the traffic laws, you are not considered to have commited murder or even manslaughter, since you had no intent to kill anyone. (if you were violating other laws then you may be convicted based on extreme negligence, but that is a whole seperate story).
What I fail to understand, is that the judge comes to the conclusion as to the intent of the original author of DeCSS, aparently soley on the basis of MPAA testimony. The author wasn't on trial, but his intent is crucial in finding that the primary purpose of DeCSS was to violate copyright protection, rather than to enable fair-use.
Work for Change & GET PAID!
Indeed, and I think the summary nicely reveals that clearly the point that people buying a DVD have a right to view it as they please has not been made. However, this is unsurprising, as this was actually a predicted result when the DMCA was being considered as law. If a poor precedent is set, expect the DMCA to protect any and all information with enough lawyers. Why even encrypt with a key? They could have xor'd the content against a 16bit key, and sued just the same.
I'm going to take the time and write my legislators about repealing the provisions of the DMCA which enact the absurd restrictions on reverse engineering encryption systems, just because they protect copyrighted works. The criminality of that activity should require a burden of proof that it was intended for the illegitimate access to the protected work.
Obviously a first victory for the money interests. a shame that the dvd script kiddies who had to go trading these things around screwed it up for the rest of us.
"It is a greater offense to steal men's labor, than their clothes"
I may be way off course here, but I don't believe the defendants would ever make the argument as stated above. Even a foolish idiot wouldn't make such a spurious claim. The fact this judge has interpreted the argument in this fashion implies a clear biased.
I am not making a comment on the ruling as a whole, just this judge's view of the defendants. It is also interesting to say that the current framework is one that protects and harbors a monopoly.
This is not the way to build a lasting empire.
Zarn: there was an extra / at the end of the link.
Try this instead.
-- Sig (120 chars) --
Your friendly neighborhood mIRC scripter.
* Q
P.S. If you don't get this note, let me know and I'll write you another.
Whether intentional or not, your entire post comes across as condescending. The belief that somehow this is a "lesson to all the kiddies" is demeaning and manages to portray the idea that all the people involved were naive and ignorant imbeciles.
The defendant, the 2600 website operator, was a 40+ year old journalist. Not a punk kid.
Experts for the defence included 50+ year old Professor Touretzky. Not a punk kid.
The defence lawyers have 20+ years experience and have acted seriously from the start.
But the point you raised which annoys me the most...
You haven't even bothered following the case else you wouldn't even make this stupid claim. The defendants never once argued along this line of reasoning that "information must be free". I don't believe that rot, and clearly the defence and the defendants didn't either.
This case is far more chilling than the lame need to watch hollywood movies. What the judges decisions effectively says is that an encrypted material cannot be decrypted without the author's consent. This has far-reaching implications not for DVDs or even movies. This has the potential to destroy Linux and open source itself. Imagine your next video card has the GPU microcode kept in encrypted flash: you can't even use the card without using the vendors drivers unless you want to circumvent the encryption method. This means the DMCA allows vendors to prevent open source drivers from being traded and improved.
I think you've done a great disservice with your post. Not only did you trivialise the entire defence, implying that they were just a bunch of unruly "punk kids" who were giggling and swearing while acting disrespectfully to the court, you also manage to completely misunderstand what has happened here and why it is so important.
Their legal footing is this (IANAL):
1) The first amendment DOES permit the publication of potentially dangerous information or instructions. This has been upheld by the Supreme Court for quite some time (at least since the case in which a magazine published instructions for nuclear weapons construction in the 60s -70s)
No, you can't say "Let's go kill Brian Adams, right now" but you can say "Brian Adams will be the first against the wall when the revolution comes." One is an immediate incitement to an illegal act. The other is not - it's protected speech.
And source code has been found in a different circuit to be protected speech, and once a case involving that idea gets to the Supreme Court it's likely to be upheld there too - why should VERY PRECISE speech be less protected than vague speech? It's not impossible to program a computer in English, if you're clear and write an interpreter.
2) The MPAA members are illegally using their copyrights to acquire and keep a monopoly on DVD players. The traditional remedy, as I have heard, is to invalidate the copyrights being used in this manner until such a time as they are no longer being used for illegal activities.
The Judge (whose firm has consulted for the MPAA on antitrust issues in the past - which is why he probably should not have been involved with this case) quickly decided that the DMCA overrides antitrust law (it plainly doesn't and the Congressional record is clear on that over and over again) and refused to hear arguments along those lines.
3) Fair use is being circumvented by the DMCA, but fair use is a right which for over a hundred years was found by courts high and low to be more fundemental than copyright. While Congress has since explicitly enacted laws protecting fair use, they are constitutionally unable (so sayeth the courts) to get rid of it.
But Kaplan let himself be fooled by the MPAA who claim that fair use still exists, even though you can't actually exercise it.
4) The MPAA never showed any harm, which is something of a prerequisite. The case should have ended at the beginning, really.
2600 has a MUCH stronger case than the MPAA. They just don't come across as well to a biased judge.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
It is bizarre that a judge would include in his conclusion statements about the beliefs of plaintiffs and defendants. Isn't the whole point of blind justice that decision is made based on actions, not the personal beliefs of those who act?
In First Amendment cases in particular, it is very important to distinguish beliefs from the content in question.
If I post a photo on the internet which is not obscene, for example, the judge cannot throw me in jail because of my beliefs.
And if I make a statement about someone which is not libelous, to pick another example, the judge is not allowed to decide based on which movements I belong to. Freedom of association is another freedom guaranteed by the First Amendment; it is unconstitutional in this country to use one set of laws for people in organizations we like, and another set for those we don't.
Jamie McCarthy
Jamie McCarthy
jamie.mccarthy.vg
No, it isn't. DMCA talks about circumventing the protection without authorization, but so far (I haven't finished reading Kaplan's whole opinion yet) the judge has not explained why the owner of a DVD does not have authorization to watch the movie.
Remember: DMCA strongly implies that whatever authorization there is, comes from the copyright owner of the work, not the inventor of the encryption algorithm. Furthermore, the DVDs are sold without the buyer contractually agreeing to certain conditions (i.e. using an approved player) in exchange for that authorization. Therefore, the question of whether I have authorization or not, is identical whether I play the movie with LiVid or a Sony DVD player.
If I am violating DMCA when I play a DVD with LiVid, then I am violating DMCA when I play a DVD with a Sony DVD player. I am pretty sure this situation was not Congress' intent, therefore I think authorization has been granted, and therefore DeCSS does not break the law.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
It looks like Kaplan found a hole in the Plaintiff's case and tried to patch it himself by pretending that some additional legislation has been passed! Maybe he always wanted to be a congressman instead of a judge. Check this out, from from page 32:
I call your attention to the phrase "by purchasing a DVD player or drive containing the keys pursuant to such a license." Where did this come from? It's not in DMCA. Kaplan pulled it out of his ass.
Why is this important? Why did Kaplan make this up? Because: The plaintiffs need for the "authorization" to watch a DVD to not be granted by purchasing the DVD. If authorization is granted by buying the DVD, then DeCSS and LiVid do not violate 1201(a)(2).
Kaplan could conclude that authorization is never granted, but that would mean that watching a DVD is always illegal, regardless of the player. Clearly, that would be contrary to Congress' intent when they wrote DMCA. Coming to a conclusion that is contrary to the intent of the law would be a very bad thing. Sort of like an indirect proof in math, where you assume the opposite of what you want to prove, and show that it leads to a contradiction. Kaplan must dream up some way for authorization to be granted to watch the copyrighted work, without it being implicitly granted when one purchases the copyrighted work.
One way that a consumer could get authorization would be to sign a licensing agreement when they buy a DVD, where the terms are that the consumer gets authorization, in exchange for agreeing to not watch the DVD on unlicensed players. That would work perfectly. Just one problem: it is ridiculous. People don't sign license agreements when they buy DVDs. So that idea is out.
At this point, Kaplan is in a real pickle. He can't say that authorization is granted by an explicit agreement, because DVDs just aren't sold that way. He can't say that authorization is never granted, or the defense wins. He can't say that authorization to watch the DVD is granted when the DVD is bought, or the defense wins. And of course he can't let the defense win, because that would make his old firm look bad since they did consulting work for MPAA. (If only he had recused himself, it would be someone else's problem, and they could just rule for defense. But he didn't recuse himself. Oops.)
The poor man is in a real bind here. What can he do? He has to invent some other way for authorization to be granted, and here's what he came up with: "by purchasing a DVD player or drive containing the keys pursuant to such a license." DMCA pretty strongly implies that authorization comes from the copyright owner. There certainly isn't anything in DMCA that says that authorization comes from the algorithm inventor. Maybe if it had been patented, that would have worked. But CSS isn't patented. Oops.
There's my challenge to Kaplan and the plaintiffs: explain how I get authorization to play all CSS-protected works (even CSS-protected works where the copyright owner is not a member of MPAA and has no agreements with DVD CCA) by buying a player. Show me the part of DMCA where it says that I can get authorization to circumvent the protection of a copyrighted work, from a third party who may not be acting on behalf of the copyright owner. Show me. I bet you can't.
I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD and sue Sony for trafficking in a player that plays it. Let Sony's lawyers explain how they, not me, grant consumers the authorization to circumvent the protection on my work. Let Sony's lawyers explain how they bought that right from DVD CCA. Let them explain how DVD CCA has universal authority over all copyright works that are scrambled by an algorithm that is unpatented, public domain, and available from thousands of sites across The Internet.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I know it's going out of style these days, but let's see what the consitution has to say on the matter of intellectual property.
This clause is varyingly known as the "copyright clause" or the "patent clause" depending on what kind of a lawyer you are. Either way, this is the exact wording in the Constitution (section 8) that provides for the creation of Intellectual Property.
It says:
The Congress shall have Power...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
It seems that the authors of the consitution had not intended in any way for Intellectual Property to be a financial protection in the way that it is currently interpreted. Seemingly in direct contradiction, the judge says:
Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain.
(emphasis in both cases rather obviously mine)
Something smells fishy here...
Anthony
"I think any time you expose vulnerabilities it's a good thing." -Attorney General Janet Reno
But over-ruling the DMCA was certainly not his job.
The Supreme Court of the United States disagrees with you, as does the vast majority of Constitutional scholars in this country.
Any and every Article III Judge in the United States (and Kaplan is one) has a Constitutional duty to see that the law of the land is upheld.
The nation's highest law is the Constitution. It is therefore the required duty of all Article III judges to review laws which come before them for Constitutionality.
Judge Kaplan did so in this regard; he came to the conclusion that the DMCA's more odious provisions do not violate the First Amendment. Overruling the DMCA, if it is unconstitutional, is definitely his job...
... he just decided that source code is not worthy of Constitutional protections.
When the Supreme Court handed down a ruling that Andrew Jackson disagreed with, Jackson refused to execute the Court's order and commented: "[The Court] has made its ruling; now let it enforce it."
I'm tempted to write a letter to Judge Kaplan saying the exact same thing.
By the by--many lawyers and judges will disagree with me here, but I strongly encourage people to write letters to Judge Kaplan. Keep them polite, respectful and intelligent--trust me, you do not want to piss off a Federal judge. He will not respond to your letter, no matter how much he wants to; Federal ethics laws forbid him from responding to citizen complaints.
However, the First Amendment guarantees that we have the right to petition the Government for the redress of grievances. The First Amendment nowhere states that we can only petition our President and Representatives.
and if I point at you while you are wearing your T-shirt, am I guilty of linking?
-tim
So am I breaking the law if I wear my DeCSS shirt tomorrow?
I understand the limitations on "calls to action" like incitement to crime or yelling fire in a crowded theater. But if that's the basis for eliminating the First Amendment as protecting DeCSS, there's a contradiction between that and the protection that Loompanics books get, which include guidelines on credit fraud, making and using explosives, manufacturing illegal drugs, escaping from jail, etc. Posting DeCSS isn't an incitement to commit crime anymore than posting a description of how to make a submachine gun is - what the user does with the information is the user's responsibility, not the information's.
-----
Klactovedestene!
I followed this case kind of closely, and I don't remember even a shred of the DeCSS defense revolving around the argument that intellectual property should be free to all. The strongest DeCSS argument, in my opinion, was the one that the reverse engineering was specifically legal because it allowed the content to be played on platforms for which there was not a "legitimate" player.
But regardless of that, I think this ruling shows a fairly huge amount of bias on the part of Kaplan, since I don't believe someone who actually read and understood the defensive filings would summarize the defenese's position in this manner.
Or, to be less sinister, maybe it was just a serious lack of understanding on Kaplan's part. One way or another though, the gross misrepresentation of defense's argument in the ruling should be strong grounds for appeal.
-b
If I wanted a sig I would have filled in that stupid box.