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Ask The DeCSS Legal Team
Martin Garbus and Robin Gross are the attorneys defending Emmanuel Goldstein and 2600.com in the DeCSS case that just had its first decision. Ask them whatever you'd like about the case - we'll do the usual, forward highly-moderated questions and get their answers back to you ASAP. Note that standard, boring questions like, "Where do you go from here? Will you appeal?" are going to be asked and answered in other news stories, probably many times over. This is an opportunity to ask those questions that won't be asked in other news stories.
This has implications regarding such things as export controls. It's instructive to compare this decision with Bernstein, where the functional aspects were held not to weaken First Amendment protection.
So now we have conflicting decisions on this fundamental issue. Will this issue be pushed to the Supreme Court level to achieve resolution?
It seems to me that nowadays, we still have production companies in the MPAA, but we now have home "theatres" using equipment that the Judge said in his decision must be approved by the MPAA. That means that playback is now controlled by MPAA companies.
How is this different from the situation 50+ years ago? It seems to me that the judge, in this decision, basically said that movie production companies ARE allowed to own both the studio and theatre, essentially nullifying the antitrust breakup 50 years ago.
Will this have any impact on your appeal?
No doubt a *huge* concern with this unique case, and one of the many reasons for its publicity, is the danger of legal precedents. How would you predict the long-term effects of this case with other landmark cases such as Roe vs. Wade?
Source code is a lot like a parachute; it needs to be open in order to function properly.
why does the court insist on saying DeCSS is used for copying DVDs when that is possible without DeCSS? How do you intend to prove that DeCSS is used for positive means?
To the EFF Legal Team: I understand it is your goal to take this to the Supreme Court and have the DMCA declared unconstitutional. Do you foresee the eventual resolution of this issue being affected at all by the results of the Presidential election in November? There has been much talk of the next President being able to appoint a number of new Supreme Court justices. --mibh
"Property is theft, therefore theft must be property, right?"
There are an increasing number of cases in today's courts that deal with technically complex issues, where code is intrinsically a part of the subject matter. Do you feel that the existing legislative and judicial system in the United states is currently capable of dealing with these 'geek' issues? Is there sufficient technical expertise available to be able to create laws and make judgements on issues that require the understanding of intricate lines of code and the nature of the internet and digital distribution? Or, if laws are being made and upheld by Congress and the courts while lacking technical understanding, what can be done to remedy this?
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"The Constitution...is not a suicide pact."
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What kind of timeframe can be expected before coming up for review by the Supreme Court? Also, for those that continue to use the software after the Usage portion of the DMCA goes into effect be liable for arrest and prosecution?
Walter
UNIX doesn't have a monopoly on Good Ideas, it just owns most of them. --Alan Cox
I have seen the argument made that code is speech and therefore protected by the first amendment which, apperantly the judge disagreed with. Around here we have discussed how the DMCA effectively limits or eliminates the concept of "fair use" of digital works by allowing corporations to dictate and restrict exactly how one can access use a copyrighted work. It seems that the only way to make fair use of such a protected work is to break that protection. Doesn't this mean that software like DeCSS is necessary? Isn't there an iherent contradiction between DMCA and previous copyright law? How would/could this be argued in a higher court.
Judge Kaplan argued that computer code is "a matter of First Amendment concern. But computer code is not purely expressive." He goes further: "society must be able to regulate the use and dissemination of code in appropriate circumstances."
In other words, computer code is more than just speech, and as the courts have ruled since 1968, when laws "are limited to the noncommunicative aspect" of some form of conduct, they do not violate First Amendment protections.
This is a theme explored somewhat in a recent article in Salon (for which Mr. Garbus was interviewed, incidentally):
While code certainly has an aspect that could be deemed speech worthy of protection (as Professor Touretsky movingly testified), it has nonexpressive aspects as well. That seems to be at the heart of Judge Kaplan's decision, and you will have to work hard to get around that on appeal.
Hence my questions to you:
1. What level of Constitutional protection does software or computer code deserve? Will you continue, in appeal, to take the hard line that computer code is purely speech?
2. I know this may be somewhat out of your purview as lawyers, but do you hold out any hope for legislative remedy? If so, how would you want Congress would alter the DMCA?
3. And, finally, what possible implications does Judge Kaplan's ruling have for other cases relating to the legal status of software, such as the storm brewing over business method patents on software?
Thanks for your time.
Yours,
Adam Keiper
The Center for the Study of Technology and Society
Washington, D.C.
Does this mean that a copyright holder can put arbitrary restrictions not just on who can view the material but how they can view it?
But later on in the decision the judge says
this seems to say the answer is no, but it contradicts the judges earlier statement that simply decrypting CSS without a license to decrypt it(he didn't say that decrypting CSS is only prohibitted if you don't have a license to the underlying movie) is a violation of the act.If you need both a license to view, and a license to decrypt (the one that comes with the DVD player) that seems to be an arbitrary restriction put on how I can view my DVD.
So if a DVD maker can say that you can only view the DVD on players made by company X, Y, and Z(licensed players) then what stops the a movie studio from releasing the same movie on a VHS and saying that it can only be played on VCR's from Sony(for example?).
In your opinions, were you successful at getting your points across to the court? Where were the shortcommings? And finally, what points were you able to get across to the american public that you felt were important?
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.
From the finding:
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.
At what point did Judge Kaplan determine this to be the case?
Did the plaintiff make this claim?
Do you feel this ruling will have any residual effects on the Open Source Community?
Do you think the Napster case hurt (or helped) your defense?
Browser? I barely know her!
Kaplan said:
If I understand this, Kaplan's interpretation is that DVD CCA can grant authority to circumvent because of its agreements with MPAA (the copyright owners), and DVD CCA gives that authority to licensed DVD player manufacturers, who in turn grant that authority to consumers in the form of licensed DVD players. Apparently Kaplan neglected the fact that the CSS algorithm is unpatented and now widely known (partly thanks to your client), and that therefore anyone can create a CSS-scrambled work, even non-MPAA members. Therefore, DVD CCA might no longer grant circumvention authority on behalf of all CSS-protected copyrighted work, so even Sony's licensed players may be no more authorized to circumvent than DeCSS is, if Kaplan interprets authorization that way. He has basically made the mistake of equating the algorithm designer with the copyright owners.
My question is: Mr. Garbus, why didn't you call this to Kaplan's attention? Has the defense, up to now, proceded from the assumption that only the MPAA members can create CSS-protected DVDs?
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
To quote:
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.
What did you do to give him this idea? Or rather, what could you have done to educate him otherwise? (Or was it a hopeless case of previou$ly held bia$?)
Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era.
Possible impact? What sorts of research did you do (or could you have done) to help show that there is already a huge impact and that the laws as they are just won't jive with today's tech?
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With a slight change, this method worked on my 5 year old brother. Why doesn't Kaplan get it? I don't know...
Q:Doctor, how many autopsies have you performed on dead people?
A:All my autopsies have been performed on dead peop
Do new codecs like DIVX weeken your case? For example, now poeple can turn a 4GB DVD movie into a nicely sized 600MB file. Perfect for the average CD or fast Internet connection download. And quality isn't lost (much).
If you came up to me and said "Bit-for-bit copying of DVDs is and has been available for years", I'd know what you meant, as would most of Slashdot. However, does a judge know what a "bit" is?
Is it a plus or a minus for your cases to be technical? Can you dazzle 'em with bull, or do you have to have a LOT of "experts" up to explain what C or C++ is?
I know that a lot of medical cases are won or lost on the complexity of the issue at hand, but these are generally jury trials. This judgement comes from a judge. Is it a plus or minus to have a technically savvy judge?
Good luck in the next stage -- I wish you all the best, and thank you for your work!
Potato chips are a by-yourself food.
What do you think of Judge Kaplan's characterization of the defendants as "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."
I'm assuming that you'd take issue with that view of the defense's arguments.
In hindsight, do you see any errors in judgement on the defense that might have caused this (in my opinion) wildly off-base view of the defense?
Going forward, what impact will this characterization have on the appeals process? By my reading (and many others'), the DMCA specifically allows DeCSS by virtue of the interoperability clause. Is there any hope of the case returning to this focus, or has it wandered irretrievably into the socio-political arena?
If I wanted a sig I would have filled in that stupid box.
What I'm wondering is this: the MPAA is an American-only institute (as far as I know, correct me if I'm wrong)
So, does the judges decision matter at all outside the USA? Is it also illegal to distribute DeCSS in Europa (or wherever as long as it's outside the US?)
Every expression is true, for a given value of 'true'
Would Americans retain any power anymore to decrypt, reverse engineer, or otherwise pry into the workings of future technological applications? Considering that most everything will be encrypted in the future, from our toasters to our cars, the implications here seem to be complete control of capitalism by corporations.
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This isn't flamebait -- it's a honest question. Why should I, John Q. Public, care about this case? What's in it for me? What would I lose if the MPAA were to ultimately win? What would I gain from a 2600 victory? In other words, please explain why this case should matter to the average American citizen.
As someone who has been a practicing First Amendment lawyer for a very long time (22 years), though not as long as you (this is directed to Martin Garbus), I was, at first, highly skeptical of the idea that a group of mostly programmers could make any meaningful contribution to an actual court case.
But as time went on, the discussions became more focused, my view on that, borne of my own traditional way of doing legal briefs, came to change considerably. I saw arguments being developed (and trashed, where appropriate) that likely would not have happened but for the massive input into that list. Your colleague Ed Hernstadt posted there occasionally, my understanding is that your team was getting good information from there, and even one of your expert witnesses (Ole Craig) seems to have come to your attention as a result of his contributions to that list.
So my question, primarily for Martin, is how much did you really gain from that list? Was the Openlaw/DVD forum really of meaningful help to your efforts, or, at least in the context of providing specific help to the trial lawyers, was it a waste of time for those who participated?
I know, of course, that Kaplan ruled against the defense today, but I'm really looking at the broader implications of something like that forum. Do you see it as something which, in the appropriate circumstances, can have real value to a case?
Since it seemed obvious from the outset that this Judge is as cluefull about electrical devices as, say a strict traditional Amish man (no offence to any of that faith reading this), how do you propose to convince the appeals court that *we* should be able to: use our choice of decoder, running in our choice of legally obtained operating system, running on our choice of legally obtained computer, with our choice of legally obtained playing device, playing our legally obtained DVD? It seems that is the issue here, not the political motivation of Emmanuel, or anybody else for that matter.
;-)
If the question looks long to you it is because, to me, it looks like legal stuff I have had to read in the past
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Is the 'Right To Use' portion of copyright law (a la the RIAA suit against MP3.com) at all in conflict with the judge's declaration that the DeCSS is an illegal coding effort? If I have a right to view a DVD that I purchased, how does it's encryption status affect that right?
-- You can't idiot-proof anything, because they're always coming out with better idiots.
Seriously, though, do you think that the judge had a bias due to his previous employment (see article below)?
Judge Conflicted Interest in MPAA/2600 DeCSS Case?
More specifically, what is the legal standard for adressing Judicial bias at the appeals level. Do you think there is enough evidence and circumstance surrounding Kaplan's behavior, rulings and/or personal history to have the trial reheard? What options are presented to the defense in the event that a trial judge has bias, and will will 2600/EFF pursue this on appeal?
I don't need large brains to have a good time.
Would it likely help or harm the defendant's case on appeal if other software that served the same purpose as DeCSS was independantly developed and released?
Would you think that such an occurance would seriously undermine the utility of the court's award of 'injuctive relief' for the plaintiff? Would that be enough to call the judgement in this case into question?
It would also seem that if the alternative software was specifically intended as a Linux executable, that it would overcome one of the judge's problems with the defendant's case, that being the apparent contradiction with the stated desire to make a Linux DVD player and the fact that DeCSS was originally developed as a Windows executable. Would that difference help or hurt the defendants in this case if/when they appeal?
Does it ban the specific utility DeCSS, or all software which decrypts CSS? Does it only apply to Emmanuel Goldstein and 2600, or to everyone in the court's jurisdiction? The ruling bans linking - is the court's definition of linking restricted to hypertext tags, or is it more expansive than that?
the spirit or the decision of the ruling?
On the 2600 web page I saw something along the lines of "If we're forced to stop linking to the DeCSS source, then we'll link to other people's lists of DeCSS sources. If the judge orders us not to do that, then we'll host a text file that contains links to DeCSS mirrors. We'll keep finding ways until the judge is forced to leave us alone or sompletely gut out first amendment rights." or something of that nature.
Is your client going to engage in civil disobedience like that or are they going to give up?
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
Why was the judge hesitant to see the unconstitutionality of the law? He said that "Congress has resolved this clash in the DMCA and in the Plaintiff's favor."
Isn't that his job? Can you fathom how he justifies this backwards view of the judicial-legislative relationship?
I don't need large brains to have a good time.
Have you ever bought a book you couldn't loan to someone else to read, or indeed even re-read once you'd read it once?
Have you ever bought a music recording you could only play while the playing device was connected to the internet?
Have you ever had your choice of video output devices limited just because better quality outputs would allow copying?
Have you ever seen a whole world based on the concept you don't actually own any music/books/video you buy?
Unless the DMCA is fixed, You Will!
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Something that's always confused me about this case is what victory would mean. If, for example, at some time in the future, the Supreme Court were to find for the defendant, would that mean:
A) DeCSS is legal and thus linking to DeCSS is protected since the software was legal in the first place
or
B) DeCSS is or isn't legal, but it doesn't matter since linking is as constitutionally protected as a newspaper.
Are those two resolutions mutually exclusive? Did you decide early on that A was more important constitutionally than B and decide to focus on defending the legality of DeCSS? If B is outside of the scope of your desired outcome, should we be worried that this whole fiasco will repeat itself when someone comes out with DeSDMI or some other cool hack that everyone wants to link to?
It is my understanding that Xing's DVD player had the key in cleartext, making it trivial to make DeCSS. In fact, one could argue that if it wasn't done by a 16 year old child, then it would have been done eventually, perhaps by somebody with less aimable motives. Where is Xing's liability in all this?
What do you guy think of algorithmic vs. legal security?
This is a very old issue. There have been laws against going into somebody's residence and taking their stuff, without their permission, since about 5000 years ago. This is legal security - if you steal, you will be punished by the legal system. This has probably worked - probably there have been less thefts than there would have been without laws against stealing. In fact, had these laws never been written, there might be no such concept as "theft" and therefore no way to discuss "theft" and decide that it is a bad thing.
When the Industrial Age began, mass-produced locking devices became accessible to the general population. Sure, there might have been functioning locks on the gates of large walled cities, but there wasn't the technology to provide a lock for the door of every dwelling. Now there is. Locks are algorithmic security.
And now, if you don't lock your bicycle and it gets stolen, you'll get no sympathy from the legal authorities - there will be no legal security for you. In fact, police in some towns claim the right to confiscate any unlocked bike and, if you haven't registered it with them previously, the right to keep it and sell it at auction themselves. Basically, the legal powers have decided that it is mandatory for property owners to implement algorithmic security in order to claim legal security.
However, legal security is still required. Were there no laws against theft, there would be no law against cutting the lock of a bicycle with a blowtorch. But algorithmic security is now considered the main way to secure your property - the legal security is now only a backup plan. Algorithmic security is better, because it works automatically and takes a lot of the work off of legal people.
Therefore, algorithmic security is necessary for a property owner to implement before he can claim a right to legal security.
The MPAA's case extends a little bit further. Algorithmic security, in their view, seems to be not only necessary to a claim of legal security, but is also sufficient.
Their argument is that putting a form of encryption on their product should entitle them to property rights, such as restriction of fair use, that, were there no encryption, they would not have. Normally, fair use rights would belong to the public and the MPAA would not be able to claim any sort of ownership or restriction over these rights. Algorithmic security gives them legal security against theft of things that they wouldn't even own otherwise!
It is as if they're saying that if you have the right to lock a bicycle, that means you own it. And then they requested, and received, the right to lock bikes that they don't own.
So haven't they subtly altered the pre-existing notions of security and property rights? I don't see how I could legally go around locking other people's bikes and then claiming that they were mine, but that is precisely what the MPAA, with the blessing of the United States Congress, seems to be doing.
Thank you very much for efforts so far in this case, I have a personal and professional stake in the continued protection of freedom of speech on the part of computer programmers and the right to reverse engineer. I hope you continue to stay on the case through appeal, we need your efforts.
I have a few questions for you.
How time dependant is the chalenge to DMCAs constitutionality? Will the appeal be based solely on legal precedent or will the passing years that the DMCA stands work against you?
I am planning on purchasing a laptop with a DVD rom in the near future. Now that the judge has rendered DeCSS illegal to own or use, what kind of legal consequenses do I face I use DeCSS in Linux to view DVD disks on my laptop. Is their any kind of law that would protect me if I am doing it as a protest or civil disobediance?
I live and work in New York state.
Thanks again for your time.
Matthew Newhall
President of the Long Island Linux Users Group
president@lilug.org
Novel theory: Modern Man evolved from psychopath
As a computer programmer I am very concerned that my right to code whatever I please is protected. By making this distiction (between algorithm and key), am I not preserving that right while at the same time protecting the intellectual property of the consortium? How would the situation change if someone developed a key-generating algorithm?
Thank you.
Axel
Axel
mhm23x3, alt.fan.karl-malden.nose
Now the real point and question: Why is speech that can cause computers to perform an action not protected, but speech that can cause humans to action (and be much more dangerous) protected? Why can't those in the system recognize that computer code is really no different than propaganda or a user's manual, regardless of what the manual explains how to do? I've always thought that making those 'dangerous' instructions or 'dangerous' ideas was the whole point of free speech. And isn't the point to protect the concepts and ideas of the 'speech', not just a representation of those? Does that mean that if someone were to take the DeCSS source code, and rewrite it as a sonata, or even just specify that it should be read in iambic pentameter, and comment out single function call that it would then be legal? It seems like almost like thought crime. What would it take to once and for all make computer code protected under free speech? and could this case lead to it?
While I was reading through the Court's decision today, I picked up the impression that Judge Kaplan was not pleased with the conduct of 2600 before and during the case regarding DeCSS. He seemed to be particularly perturbed about the ongoing linking to DeCSS, the seeming defiance of the law in the encouragement on the website to spread DeCSS, and the use of the phrase 'civil disobedience'. It looked to me that he really bought the 'DeCSS=Piracy' argument that the plaintiffs kept bringing up to the exclusion of all of the important issues raised by the defendants, especially with the part in the last page where he said that "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." (my emphasis). This really disappointed me, because I thought the judge was really getting it until I read this.
I guess my question is the following: do you believe that 2600's stigma caused by being a member of the hacker community, or by encouraging civil disobedience, distracted the judge from really diving into the issues that you presented at trial? Also, do you believe that this decision, as well as the defendants conduct, would have a significantly negative effect on appeal?
I do want to add that I appreciate the work that you, the EFF, and the defense put into defending the rights of the Linux community as well as those of DVD owners. I've followed this case from the beginning, and it looks like you guys put out a top-notch effort.
After the Microsoft trial, numerous comments and speculation were made on Slashdot and other forums about how the appeals process is highly unlikely to overturn the Finding of Facts. Any action is more likely to focus on the Findings of Law and the Remedies.
First off, this trial doesn't appear to have three parts, like the Microsoft trial did. I don't pretend to know the differences at work. Can you enlighten us further on why things appear different?
Second, based on the Microsoft trial discussion, it appears that the appeals process is not merely 'redo the lower court trial', but rather focuses on certain aspects of that trial. Accordingly, the decision of the lower court must have in some sense set the stage for the appeal. Can you comment on how this decision sets the stage for a deCSS appeal?
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__________________________________________________ ___
rooooar
He explains that this is OK by analogy of defamation law: if you say something bad about a public figure, part of what they have to prove to convict you is that you knew it was false when you said it. So, your state of mind at the time of the alleged crime becomes legally significant.
The judge is looking for a way to uphold the DMCA without creating a chilling effect that will prevent webmasters everywhere from having to worry "am I going to get in trouble for linking to the wrong thing?" But the act of deliberately linking to a URL cannot be distinguished from desiring to disseminate the information at that URL. That is the whole point of linking: disseminating the information at the other end.
Do you think the judge has noticed that the New York Times -- the same newspaper he frequently references in the titles of precedent-setting legal decisions -- has linked to the DeCSS links on at least three occasions -- April 28, June 16, and July 14? Most reasonable people would conclude that the Times had "a desire to bring about the dissemination" [of DeCSS] in so doing. What else could it have had in mind?
The Times obviously has a vested interest in keeping it legal to link. In the June 16 article, titled "Is Linking Illegal?", the opening sentence is: "A crucial aspect of online journalism is the ability to garnish articles with hyperlinks that instantly refer readers to Web sites related to newsworthy issues."
Do you think the Times will get more involved in this issue? How about if 2600 replaces its links with meta-links (links to links) -- exactly as the Times did -- and gets re-sued?
Jamie McCarthy
Jamie McCarthy
jamie.mccarthy.vg
What is the theoretical limit of the enforcement of the "no linking to the source" part of the case?
If I break a link into two pieces, with a description of how to put it back together, is that still a link? How about four pieces? Or eight?
If there's a widespread understanding that every tenth letter of one of my posts to Slashdot combine to form a URL (they don't, but I suppose they could if I worked at it), would that also be illegal under this judgement?
Obviously, we could obfuscate the link to an arbitrary degree. Does this really come down to making it illegal for me to express (in any way) a method of finding the source code?
It sure seems to me that that's a violation of my rights to free speech... regardless, it's problematic!
I suppose these same questions apply to the source code itself.
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