Posted by
Hemos
on from the shouts-out-to-the-man dept.
DivideX0 writes "Emmanuel Goldstein's response and analysis of the decision against 2600 in the DeCSS case appears in this article at the 2600 website." As always, Emmanuel's lucid and interesting to read.
Re:2600 a victim of their own reputation
by
msouth
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· Score: 4
As much as I hate to say it, as much as it sucks, I'm afraid 2600 is fast becoming a victim of their own reputation.
Although it appears that you're not trying to support the judges attitude, it appears to me that you're failing. Basically, you're saying, "it's too bad, it's not fair, but it's their fault that they are getting screwed by the system.", right? Explain to me how what you're saying is different than "well, she wouldn't have had such a hard time proving that she didn't sleep with Bob if she hadn't slept with Tom, Dick and Harry".
You go on to re-iterate that it's not fair. What I'm missing here is your point. I read "they are reaping what they have sown" to mean "they brought this on themselves", or, in other words, "it's their fault". Then later I read that it's wrong that this is happening. In other words, "it's the system that's wrong". I put these together to mean "reputations shouldn't matter, but they do, so they shouldn't have gotten a bad one, poor fools".
The article already points out that the judge was apparently biased against 2600 because of their previous publications, and that this is wrong. So what you are adding is that, because their description of what's wrong with various security models reads to you like instructions for crackers they have brougt it on themselves? It just keeps sounding to me like you sympathize with the judge even though you know you shouldn't.
Not a flame, just wondering if you can clarify your point, or tell what you think they should have done differently. Would it have gone better for them, in your opinion, if their past articles had been less of a how-to and more cold and clinical? I'm just not getting it.
It'll help if you've ever read an issue of 2600. I've got about a dozen of them, as the local bookstore carries it from time to time.
2600 is not exactly Scientific American. There doesn't seem to be a whole lot of editing, and many of the articles are written in an informal, spoken-word kind of voice. It's not as bad as 3133t3 sp33k, but there's a lot of slang, bad grammar, and the like.
There's also a lot of "fight the Man!" rhetoric and quasi-revolutionary language, and the occasional thinly-veiled disclaimer. "This is totally illegal, and you should never do this, but if you wanted to here's how to do it...."
The impression created by reading a typical 2600 issue is eavesdropping on a conversation at a prison for tech-savvy criminals. It's not a fair impression, and it's more for show and image than substance ("We Bad! We 3133t3!") But 2600 manages to convey the message that it and its readership don't have much respect for law or law enforcement.
So when 2600 gets boned by a group of _real_ criminals (posing as Fine Upstanding Captialists) it's hard to imagine any judge reading a stack of 2600s and coming away with any sympathy for them. Page after page of "how to crack this system" and "how to phreak this phone" doesn't install much confidence in the argument that DeCSS wasn't intended as a copying/pirating tool. Page after page after tedious page of "Our legal system sucks. Judges are all corrupt. Free Kevin!!" rhetoric doesn't do much in the way of image building either.
What _really_ sucks is how much influence all this seems to have had on the judge - because once you get past all that noise and look at this case at the pure merits, it's obvious that the MPAA doesn't have a leg to stand on. If the legal system really was 100% pure logic and objective reason, the case would be done by now, and the MPAA would have been sent packing.
But that's not what happened. Obviously, 2600's somewhat grey-hat presentation style made a bigger impression on the judge than the actual facts of the case. And given that 2600 has worked very hard to create that "Hax0r 3133t3" image (that is now biting them very hard) they are reaping what they have sown.
I'd bet dollars to doughnuts that if 2600 was a little more like Scientific American, and a little less like the Hax0r Pravda, that their troubles would be a lot less.
And yet, the fact that a change of editorial voice could sway a judicial proceeding is truly a Very Bad Thing. That 2600 ran afoul of the law is just Karma; that the judicial system was unable to look past the bullshit and see the real case is... disturbing.
So I'm torn myself. On the one hand, I see 2600 getting a little Karmic balancing for all the "on the edge" stuff they've done. On the other hand, to see them lose a meritorious and _important_ case because of their image (and the associated implication that if you want to have your rights protected by the courts, you had better toe the editorial line) strikes me as wrong too.
And in all of this, I see the litigational genius of the MPAA's legal team. They've picked the perfect target, one that is going to have to work very, very hard to create any sort of judicial sympathy.
I'm getting a little suspicious
by
Bill+Currie
·
· Score: 5
I've only gotten 75% of the way through the article, but it's beginning to sound like Kaplan ruled in favour of the MPAA in order to force the issue up to the next level. Yes, he was insulting, but that is actually why I'm beginning to suspect this: being insulting never gives your argument strenght. If anything, insults detract from your argument.
Too many of the analogies mentioned in the article are just too ludicrous to get past a higher court, and so this seems to be a way of passing the buck. My guess is that Kaplan knew that no matter how he ruled, he would not have the final say, and thus made things even more likely to move up.
I'ld better stop now. I'm having too much trouble passing my thoughts to my fingers.
Bill - aka taniwha --
--
Bill - aka taniwha -- Leave others their otherness. -- Aratak
As far as I'm concerned 2600 should have just removed it and said, "remember, it's still everywhere else". They would have saved time and money.
This fight needed to be fought. Sure, meekly complying with the bully would have kept 2600 et al out of court, but where would we be in terms of getting fair use back? The MPAA might be fighting a battle that, in all practicality, is as good as lost, but that doesn't mean they deserve the legal clout the DMCA gives them. What would happen if more laws (similar to the one alluded to on 2600 now, regarding reverse engineering - anybody got more info on that?) further restricting your rights to use/peruse/disseminate information get passed?
I don't like slippery slopes - and the good folks at 2600 are fighting tooth and nail to keep us from taking the first step down this one. They deserve our help, everyone - support the EFF!
-- Karma: Excellent, but still won't get you laid.
The point is that it was illegal to crack the encryption, and illegal to distribute the tool for doing so
Some of what you're saying is true, but some of it is way off base. Let me try to cut through some of the mindless babbling.
1) 2600 didn't create the tool to bypass the encryption. Someone else did. Regardless, that's not the core issue of this case.
2) The judge has now prevented 2600 from linking to DeCSS. That in itself is pretty questionable.
3) The judge should be interpreting the law. So is his ruling correct? Perhaps so -- the DMCA may not be palatable to us, but it is there. However, he is still a judge. He should be setting aside his personal biases towards 2600's reputation.
4) The basis for appeal will probably be on First Amendment grounds, regarding the distribution of source code. As others have already pointed out, other cases have already succeeded in this area. That's 2600's goal, and if it works, it is likely that the DMCA or portions of it will be ruled unconstitutional.
Their few defenses were bullshit. Development of a Linux player?
Yes, and as you pointed out already, there is a clause in the DMCA which specifically allows reverse engineering for interoperability purposes.
Well besides the fact that developing an Open Source Linux player would be drastically violating DVD-CCA's intellectual property, (they spend money developing CSS, and they get that money back through licensing)
The encryption was a trade secret which is more or less fair game once the cat's out of the bag.
Just wanted to share an interesting experience I just had. Summary: I called the MPAA, as 2600 suggested. I eventually spoke with their PR Manager for Anti-piracy. She recommends that anyone who wants to discuss the DeCSS case feel free to email her personally at: emily_cutner@mpaa.org.
At the bottom of the 2600 article, it reads: We would give out an address for the MPAA but they've been blocking e-mail for some time and blaming hackers for every problem they have. So give them a call at (818) 995-6600 from 9 am to 5:30 pm Pacific Time. Be civil but make sure you get your point across. After all, where do you think that $4 million ultimately comes from?
So, I called. The call went something like...
MPAA-Drone #1: Hello, Motion Picture Association of America.
Me: Hello, I'd like to speak to somebody about the DeCSS case.
MD1: The what?
Me: The DeCSS case.
MD1: Ok, um... [fumbles around] Let me transfer you.
MPAA-Drone #2: So-and-so's office, how can I help you?
Me: I'd like to know if the MPAA has an official position on the recent DeCSS ruling.
MD2: You want what? In what capacity would you like to know?
Me: I am a consumer of many of the MPAA's fine products, and would like to discuss the DeCSS case.
MD2: [thinks long and hard] OK, let me transfer you...
Emily Cutner: Hello, MPAA PR dept. How can I help you?
Me: Hello, I would like to discuss the DeCSS case with a representative of the MPAA.
EC: Well, we would greatly prefer it if you would send us your opinions via Email. You see, we have only a few legal analysts on staff [ed: yeah right!] and they are busy pursuing other matters. With Email, your digital voice can be heard, and we will gladly respond. Also, please check out our web page, where we have a FAQ [etc. etc.]
The act of breaking into a bank is illegal, and it should be rightfully so. The point Emmanuel is making is that the law against distributing information is unconstitutional.
The act of distributing information about how to break into a bank in general, or a branch in particular must be protected under the First Amendment, just as instructions on how to build a bomb are currently protected.
The act of distributing information about how to decode a DVD, protected by cryptography, must also be protected, for source code is speech. The distribution of the source code does not constitute an act of theft, just as publishing instructions on how to build a bomb does not constitute an act of terrorism.
Both instructions can be used for legal and illegal purposes. The act of using such instructions to perform an illegal act is, and must continue to remail illegal.
--
My car gets 40 rods to the hogshead, and that's the way I likes it!
Given the circumstances surrounding the trial, an appeal will almost certainly be heard. Kaplan was clearly biased, and was hostile towards the defense.
He probably should have rescued himself before the trial started, because this left a huge case of conflict of interest. His personal opinions of Mr. Garbus destroyed any chance at a fair trial.
SO yes, the MPAA won this round... But there will be multiple appeals. Probably all the way to the supreme court. Given the court's recent history in copyright/tradesecret cases, it wouldnt surprise me if 2600 wins at this point. It may have to go all the way to the Supreme court before they win, though.
tagline
-- ... hi bingo...
Re:sobering prospects for future tech
by
bwt
·
· Score: 4
I located a copy of the Bernstein v Dept of State ruling (http://www.eff.org/pub/Privacy/Crypto_export/Bern stein_case/Legal/960415.decision), which among other things states this:
"For the purposes of First Amendment analysis, this court finds that source code is speech."
The UTTERLY FRIGHTENING thing is that Kaplan held that DeCSS WAS speech! He said it was also functional, and that banning it was a content-neutral regulation that was narrowly tailored to advancing an important governement interest. That is he applied the intermediate scrutiny test, citing US v O'Brian that the governement can ban burning draft cards.
He ignored without comment the fact that Congress explicitly stated that the DMCA did not "diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products. " [1201(c)(4)].
He then put elipses (!!!) over "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; " when he quoted 1203(b)(1)'s empowerment of judicial injunctions. [p83]
Once again. Kaplan admits DeCSS is 'protected under the 1st amendment' !!!! In his own words:
"As computer code--whether source or object--is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated. In that sense, computer code is covered or, as sometimes is said, 'protected' by the First Amendment." [p51]
"It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine." [p50]
Re:And here it is with the proper format.
by
bwt
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· Score: 4
Actually, I do own the content, if I recall what I've read on copyright law correctly. The MPAA has been saying that I don't, but I've paid them money for a copy of a copyrighted work. I OWN that copy, but I cannot create additional copies, except as allowed by fair use legislation.
"This Court holds that transactions making up the distribution chain from Novell through NTC to the end-user are "sales" governed by the U.C.C. [Uniform Commercial Code] Therefore, the first sale doctrine applies. It follows that the purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner."
And here it is with the proper format.
by
drinkypoo
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· Score: 4
ANALYSIS OF THE DECISION AGAINST 2600
08/21/00
Facing a major lawsuit is a lot like facing a major illness. It's expensive, time consuming, and there are a million other ways you'd like to be spending your time. But if you don't devote all of your attention to fighting it, your continued existence is profoundly endangered.
That's how this thing has been affecting us since it started back in January. It's greatly interfered with the magazine, production of our film, and organization of our conference. But it was necessary - essential, in fact - and most people seem to understand why.
It's a real shame Judge Kaplan wasn't one of those people.
From the first teleconferenced hearing to the pretrial motions all the way through the trial, I was amazed by what appeared to be unfettered hostility towards us and the many points we attempted to make. I don't see how anyone looking through the transcripts would have any difficulty seeing this. But we all held out hope that this wouldn't be present in the decision.
Were we ever wrong.
See, in my mind, this case has always been about common sense. Someone cracked someone else's badly protected encryption scheme. Game over. It's shot to hell. You don't continue to use bad encryption or pretend it didn't happen. Yet in November, that's exactly what we saw happening. And even worse, we saw people being intimidated into taking down web pages that had the offending code on them.
It was insane! It reminded me of the one car crash I've ever been in where a garbage truck ran through a stale red light right in front of me on 8th and Avenue A in the East Village. The driver tried to intimidate the people who came forward as witnesses, telling them, "You didn't see anything. Get out of here!" But if you know the East Village, you know it's not the place to intimidate people and get away with it. It's also where a lot of the "weirdoes" hang out. So to me, it's always had the mindset of the net. And that's why I've always been comfortable in both environments. And, yeah, the garbage guy got in a shitload of trouble.
The kind of honesty you get by having individuals who aren't afraid to express themselves has always been a threat to those who imagine themselves in power. Until recently, the net was the only place where individual opinion actually had a chance. If the media wouldn't tell your story, YOU could become the media and tell the story yourself. The whole world could be your audience.
I won't even get into how the net is being destroyed by advertising and conglomeration. There's no time to go on the offensive when so much time has to be spent defending one's very existence. Every day we get new reports of people being threatened in some way by some huge corporate entity because their opinions and free expression don't sit well. Years ago, this sort of thing would have been laughed at. Today, it's a very different story. Voices are being silenced, criticism is being eliminated. And very unfortunate precedents are being set.
This is all made possible through bad legislation, things like the Digital Millennium Copyright Act, which has made this lawsuit possible. Unless stopped, there will be many many more like it in the future. And many more bad laws as well. Until we overturn this thing, the danger to all of us is incalculable.
Just for the fun of it, I tried to find out who had voted for the DMCA, so I could make an extra effort not to vote for them. But they did it with a voice vote - there is no record. How reassuring.
So now we have this law that basically says we are not allowed to show people the failings of technology if the people controlling that technology decide they don't want us to. An expansion of this law which could go into effect in October would make it illegal to even TRY to find failings in such technology.
It makes you want to scream. Concepts that most 12-year-olds can grasp and understand the value of are being signed away to entities that are already far too powerful. And the result is what we have been going through extended to however many more want to try and stand up for our vanishing rights.
To get back to the naive notion of common sense that we've been clinging to throughout this ordeal, we thought, no, we KNEW the right thing to do last November was to report the story and to publish the programs. And nobody here is ashamed of the fact that part of the reason for doing this was to show support for people who were being bullied. I've never liked bullies, whether they be kids, teachers, parents, cops, governments, or corporate giants. What they were doing to these people was wrong and we felt that our standing up might make a difference.
Well, it did. But not in the way we expected. Suddenly, WE became the problem even though we had nothing to do with the encryption being cracked or even with the initial release of the story. It was as if someone painted an insult on the side of a building that everyone in the world could see. A newspaper comes along and does a story on this and prints a picture of the building and is then blamed for the insult. Oh, and let's also point out that no matter how hard they try, nobody can wipe the paint off the wall. The way things are today, we're supposed to pretend nothing is wrong and if we dare to report otherwise or present evidence to the contrary, we will take the full brunt of the blame. Sounds like some weird medieval monarchy to me.
The sad fact is that we never had a chance in this court. A mere reading of the decision shows this more clearly than anything I could possibly say. "Not surprisingly, 2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, access other people's e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores and Federal Express." The fact that he would use the phrase "not surprisingly" speaks volumes as to his opinion on our value to society. It is, at best, utter ignorance and only proves beyond any shadow of a doubt how thoroughly Judge Kaplan bought into the MPAA's warped notions of what our magazine is about. We printed an article on weaknesses at Network Solutions that allowed domain names to be stolen. Guess what? They FIXED it as a result of this article and now, domain names, including our own, are not at risk of being stolen, at least, not as much. (Had Kaplan ruled on THAT issue, it would have been illegal for us to tell anyone this and the security holes would still exist.) The same holds true for many of the other security weaknesses we report on. But, as we tried fruitlessly to explain, we exist to report the story, period. Someone may fix the problem because of the story or someone may exploit it. We cannot and will not determine what happens as a result nor will we allow fear of that to make our editorial decisions for us.
Kaplan also seems to share the MPAA's amazement that we would actually copyright our magazine and our web site. ("Interestingly, defendants' copyright both their magazine and the material on their web site to prevent others from copying their works.") It's clear he believes that we have no respect for or belief in the concept of copyright. He either wasn't paying attention during my testimony or simply refuses to believe that copyright is necessary to prevent someone else from taking credit for and control of your work. I repeatedly said that copying was not our concern. What the MPAA is attempting to do with copyright is not at all in line with its original intent.
I also find it amazing how Jon Johansen's credibility is wiped away on two occasions with a single sentence. ("[T]he Court finds that Mr. Johansen and the others who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player if, indeed, developing a Linux-based DVD player was among their purposes." "Substantial questions have been raised both at trial and elsewhere as to the veracity of Mr. Johansen's claim.") Yet not a single ounce of proof that he wasn't being totally honest is ever presented. I mean, we had PLENTY of questions both at trial and everywhere about the MPAA's veracity. But our saying that wouldn't be enough. Why is it that the MPAA is able to so easily put words in a judge's mouth?
The flaws in logic abound. At one point publishing DeCSS is compared to "the publication of a bank vault combination in a national newspaper. Even if no one uses the combination to open the vault, its mere publication has the effect of defeating the bank's security system, forcing the bank to reprogram the lock." First off, this isn't at all similar to what happened. If this analogy were to be correct, someone else would have already published the combination and we would simply have published the SAME information that had already been made public. Second, the security system of the bank was compromised the moment the combination was released or leaked to the public, NOT when this fact was reported in a newspaper. This method of blaming the messenger for the message has been used throughout the world to shut down opposition newspapers and imprison people who don't follow the party line. It's troubling to see it applied here.
Now, on the question of this theoretical bank being forced to reprogram its lock, would anyone hesitate to suggest that that is PRECISELY what they SHOULD do? A bank that didn't do this would probably be prosecuted for negligence. So why doesn't Kaplan apply this logic in his own analogy to the MPAA? Because of this: "Development and implementation of a new DVD copy protection system, however, is far more difficult and costly than reprogramming a combination lock and may carry with it the added problem of rendering the existing installed base of compliant DVD players obsolete." So basically, a security hole can be left in place if it's too expensive to fix and anyone who exposes the continued existence of the hole can be prosecuted? Riiight....
Meanwhile, a few pages later "the Court holds that CSS effectively controls access to plaintiffs' copyrighted works." That made me laugh. Would we be here today if THAT were true?
At one point, DeCSS is compared to an epidemic. But even in that odd analogy, it's recognized that finding the original source of "infection" accomplishes nothing. It's a nifty metaphor but I don't see what it does for the case against us.
Another time, DeCSS is compared to an assassination. No kidding. "Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement." You get the feeling he's deliberately equating computer code with something bad? Maybe it's me. But let's look at this somewhat logically. A political assassination is a completed act. A computer program isn't completed until someone copies it, compiles it (if it's source), and executes it on the proper platform in the proper setting. A more accurate comparison would be to compare INSTRUCTIONS for an assassination to a computer program. They both require someone or something to act upon the instructions before the task is complete. By outlawing all talk of assassination, including those within works of fiction, we achieve the same level of protection that outlawing dissemination of DeCSS accomplishes.
Naturally, one of the most important issues here is that of "fair use" which is something the DMCA appears to be taking away from us. In other words, you are entitled to excerpt portions of copyrighted works for all kinds of purposes. It's also not illegal to make backup copies. These are very fundamental and important concepts. So how do we get around the restrictions that we're now finding in new digital media? Judge Kaplan addressed that important issue this way: "[A]ll or substantially all motion pictures available on DVD are available also on videotape. In consequence, anyone wishing to make lawful use of a particular movie may buy or rent a videotape, play it, and even copy all or part of it with readily available equipment." THAT'S the solution to the "fair use" issue - use old technology that isn't affected by the DMCA?! Not exactly a graceful way of ducking the issues.
Another thing that bothers me is that it doesn't seem to matter in the least WHY DeCSS was written. The fact is that DeCSS was written to circumvent CSS and, even if that was done specifically to cure world hunger, in the eyes of the court, it was a violation of the DMCA. If this is the case, then it's pretty obvious that the DMCA is one screwed up piece of legislation that has to be thrown out. But the judge goes way beyond this, insulting our integrity and existence at every possible opportunity and making no secret of the disdain he feels for the entire case of the defense. One has to wonder why he found that necessary if it was such a clearcut violation.
Naturally, one of the most disturbing parts of all of this is the ruling on linking. "The only distinction is that the entity extending to the user the option of downloading the program is the transferee site rather than defendants, a distinction without a difference." We can all laugh at such words but they represent something very sinister. We are now expected to believe that telling someone how to get a file with a link is the same as offering it yourself. I want to know if this works both ways - if I point someone to a site or product that costs money, is that also a "distinction without a difference" that will allow me to be compensated? This kind of logic is already giving me nightmares.
Finally, there are the disturbing words on who we are and what we stand for and how this is somehow relevant to the decision. "Defendants are in the business of disseminating information to assist hackers in 'cracking' various types of technological security systems. And while defendants argue that they promptly stopped posting DeCSS when enjoined preliminarily from doing so, thus allegedly demonstrating their willingness to comply with the law, their reaction to the preliminary injunction in fact cuts the other way." Interesting, isn't it? Our "reaction" is enough to condemn us, even though we followed the injunction to the letter. By speaking our mind and encouraging others to do what we alone were forbidden from doing, we are somehow in the wrong. How is this even relevant to the law? Are people who believe in certain things or associate with certain people to be treated differently? In Judge Kaplan's mind, we "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." This is, to say the least, insulting and just plain wrong. I challenge him to find a single instance where we have ever supported piracy or accessing private information. These ignorant generalizations sound more like the work of Jack Valenti's ghost writer.
What too many people don't seem to realize is that the rules have changed overnight and it WILL affect them. Imagine not being allowed to lend a book to a friend. Imagine not being able to play music that you bought in another country. Imagine only being able to watch "approved" content on your DVD player. And just wait until HDTV comes around and makes it impossible to record anything unless you pay. These are all natural extensions of the existing restrictions and they are all now perfectly legal. You've lost the right of "fair use" with copyrighted material that you think you own. In actuality, you've just bought a license to do what they tell you.
So, after all is said and done, I have to echo what all of the legal experts have said so far: I'm not at all surprised. This is how we expected the first round to go. It's now time to focus on the Appellate Court and eventually, since whoever loses next will most likely appeal, the Supreme Court.
Everyone is asking what will happen to us and how they can help. Well, we were pretty fortunate that Judge Kaplan didn't choose to hit us with the MPAA's legal bill, like they wanted him to. Their legal fees are believed to be in excess of $4 million so that definitely would have caused a delay in the next issue. It should also make it pretty clear that the MPAA has no qualms about utterly destroying anyone who gets in their way. And it should also make it clear how important we think this is that we would risk such a thing. And ironic that none of us even HAS a DVD player.
We're also extremely fortunate that the Electronic Frontier Foundation was around to fund our defense. If anything has proven the value of the EFF in looking after civil liberties in the modern age, this has. I can't emphasize enough the importance of heading over to http://www.eff.org/support/joineff.html (I'm actually afraid to make a link now) and donating as much as you possibly can to keep this case going. Explain this to as many people as possible and get them to do the same.
If there's anything good to come out of this decision, it's that we'll get to continue working with our legal team who have been absolutely amazing from the start. I've never seen a group of people so dedicated to learning and understanding the facts. It's a real honor to be among them and it's really changed the way I look at the entire legal profession.
As for what you can do to help, apart from the above, that's really up to you as it's always been. If you believe DeCSS is a form of speech, a means of access for alternative operating systems, or a necessary step towards "fair use" of digital media, then spreading it throughout the world is extremely important for the preservation of those freedoms. If you're in the United States, be aware of the risk you are taking. And if you're one of those people who really buys into the MPAA notion that DeCSS is a tool of piracy, please DON'T do the above because you're missing the entire point.
We can no longer post DeCSS on our site nor can we link to it. We still have the right to list those sites that have it in non-linkable form and we also have the right to speak out against the injustice we're being hit with. The MPAA would like those rights taken away as well. We cannot allow them to succeed.
There will be further leafleting campaigns in the weeks ahead. Keep checking this web site for details. And please let us know your opinions - dvd@2600.com. We would give out an address for the MPAA but they've been blocking e-mail for some time and blaming hackers for every problem they have. So give them a call at (818) 995-6600 from 9 am to 5:30 pm Pacific Time. Be civil but make sure you get your point across. After all, where do you think that $4 million ultimately comes from?
emmanuel
-- "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Like (I suspect) many of you, I have the Anti DVD-CCA shirt. One of my coworkers pointed out the absurdity of prohibiting linking; We know already that I am guilty of a crime by owning the shirt, especially if I wear it in public, because I am an illegal source code archive.
If he points to my shirt, is he guilty of making a link to an illegal source code archive?
-- "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
sobering prospects for future tech
by
griffjon
·
· Score: 5
Goldstein makes some very good points about what is to come with the DCMA, HDTV, and various future technologies and extreme consumer rights violations.
What confuses me is that the judge's ruling is directly at odds with both other caselaw (namely, the Bernstein/PGP ruling) and supreme court cases such as flag burning.
I located a copy of the Bernstein v Dept of State ruling (http://www.eff.org/pub/Privacy/Crypto_export/Bern stein_case/Legal/960415.decision), which among other things states this:
"For the purposes of First Amendment analysis, this court finds that source code is speech."
-- Returned Peace Corps IT Volunteer
Re:Emmanuel Goldstein
by
TonyThompson
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· Score: 4
Sorry - you missed too:-)
Orson Welles was a radio broadcaster who recorded H.G. WellsWar of the Worlds
H.G. Wells was a Victorian science fiction novelist. (granted, that's an irrelevent point, but credit where it's due, eh?)
George Orwell wrote 1984 which was indeed a good book, and featured Emmanual Goldstein as the head of a mythical revolution. Goldstein's figure was used to focus national pride and hatred of a most feared enemy. These feelings were used to keep the sheep like public focused on issues other then the corruption of their government
Re:Text of message, long, sorry about format.
by
ethereal
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· Score: 4
Thanks for the mirror, too bad/. clipped the end of it there.
All I can say is that I share Mr. Goldstein's shock and dismay, and I'm spreading the word about this travesty of justice to everybody I know. Most non-hackers that I talk to are amazed that such a thing can go on in the land of the free. We need to get out and tell real people about this - tell your brother, your Mom, your boss, and try to explain that justice has not been served. Mr. Goldstein covers this territory more eloquently than I could ever hope, so I'll close with another exhortation to get the word out about this.
...posted from behind a firewall that keeps out those "evil 2600 hackers"...
The licences are obtained from the DVD Forum (formerly the DVD Consortium) which originally consisted of 10 big electronics companies (Hitachi, Matsushita, Mitsubishi, Philips, Pioneer, Sony, Thomson Multimedia, Time Warner, Toshiba and Victor).
There's definately some licenced DVD players for Linux in development (e.g. PowerDVD-Linux), but I don't see how any open-sourced version could ever be legal under the terms of the licence; disclosing the decryption source code is not allowed, as any and all information that you get with the licence is covered under an NDA.
This snippet from the site linked above shows the prices involved:
3. License Fees are now required for the right to use the Format Books. The License Fee is US$10,000 per DVD Format for each Product Category, as specified in Schedule A-1 of the Definitive License.
Example: If a licensee wishes to manufacture DVD-Video players, the licensee shall pay US$20,000 since it needs to obtain licenses for DVD-Video Book and DVD-ROM Book, both to be used for Product Category II (DVD Players).
Example: If a licensee wishes to manufacture DVD-RAM drives and DVD-RAM discs, the licensee shall pay US$40,000 since it needs to obtain licenses for DVD-RAM and DVD-ROM Books, to be used for Category I Products (DVD discs) and Category II Products (DVD drives).
Austrialia 2600 will not comply
by
kjj
·
· Score: 4
Click here for a story about the Austrailian 2600 that won't take the code down. They don't just link to it, it looks like they are actually hosting it.
2600 a victim of their own reputation
by
DG
·
· Score: 5
As much as I hate to say it, as much as it sucks, I'm afraid 2600 is fast becoming a victim of their own reputation.
The editorial linked to is intelligent and well-written. The defense case made for 2600 well-argued, well-presented, and logical. But the fact remains that large portions of the 2600 issues that I have read appear to be written as how-to documents for crackers and would-be cyberterrorists.
Now you and I know that, at best, your typical 2600 Hax0r is more of the network equivelent of the flaming bag of dog shit left on a front porch than a series threat to national security - but the judge doesn't see that. The judge sees a small-time larcenist with his hand caught in a bigger bag, and a long-running distain for law enforcement and legal proceedings. (Free Kevin! indeed)
No wonder that, despite their truly iron-clad defence, that the judge gives them almost no credibility. Imagine a skinhead trying to sue for (legitimate!) racial discrimination, and you get the idea.
It's not right, and it's not fair - but it's not suprising either. 2600 is reaping the harvest they have sown the last few years.
Give the MPAA credit - they knew _exactly_ who to tackle first. When you seek to set precident, attack the weakest defendant, then move on to the strong.
It's wrong that what is supposed to be an objective exercise in logical deduction has turned into a public relations contest, but that's what it is.
What confuses me is that the judge's ruling is directly at odds with both other caselaw (namely, the Bernstein/PGP ruling) and supreme court cases such as flag burning.
Well, first of all a judge can basically do whatever he wants. The appeals courts are there exactly to deal with bloopers, judge prejudice and just plain ol' stupidity. A judge doesn't have to follow case law. He makes case law. [nitpick] Well, really in the US it's the Circuit Courts that make case law, not lower-level judges, but the idea is still valid[/nitpick].
Second, even technically, the Bernstein/PGP ruling took place in California AFAIK. This is a different circuit and it is not binding on Judge Kaplan. Of course he would have been wise to read it carefully and think about it, but I as sure that his wisdom has already been commented on.
And I don't see much in common between flag burning and source code, other than the fairly obvuous fact that "speech" does not necessarily have to be speech, or even text.
Kaa
--
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
Anyway, it is the fair use issue that is significant here, and what's more, I think further attention to the matter should be to show that it is not DeCSS that is wrong, it is CSS that is immoral. CSS is specifically designed to deprive people of their fair use right, a right that is an important part of free speech.
I thought that when Garbus asked Valenti about what a student could do if she wanted to play a 3 minutes of "Schindler's List" and Valenti replied that she could get the analog version, I felt it had to be obvious to anyone that CSS did take away fair use rights, but Kaplan actually bought Valenti's argument. I can't believe it. I just can't believe it. How ignorant is it possible to get? Yes, today, analog versions exist, but they won't in a few years. I mean, I have a hard time awarding voting rights to people who are as ignorant as Kaplan was in this case, and when a judge exhibits such extreme ignorance, then democracy is at stake.
In the appeals, it should be very easy to demonstrate that Kaplan put words in the defendants mouths that they had never expressed, and that he was completely ignorant about matters of fundamental importance.
CSS is immoral. The engineers who designed CSS should have understood the consequences of what they where told to make, and should not have made them. That's their social responsibility. It is obvious that CSS takes away fair use rights. It is less obvious, yet important to realize, that it is a threat to free speech if a single body controls distribution of human communication. If DVD gets popular, you can't distribute communication by any other carrier, so in principle, it puts DVD-CCA (?) in the position that they can deny someone to produce a movie that is critical towards e.g. MPAA. Now, it is probably a long way before this is going to happen, but it is a serious threat to free speech if you make it possible. Therefore, I think it is important in the following to hammer on the point that it is not DeCSS that is immoral, it is CSS, and that breaking CSS was a moral act.
Talking about social responsibility, 2600 has one too, and sometimes, they should consider what the consquences of reporting a story is, that's the only bad feeling I get when I read the article, they seem to run away from the social responsibility of reporting a story. I think they would have been much better off if they said that "yes, we are responsible for reporting this story. The consequence of reporting this story is that a security hole will be fixed faster/it is being pointed out that MPAA is taking away our fair use rights", etc.
-- Employee of Inrupt, Project Release Manager and Community Manager for Solid
This guy does sometimes impress me, and regardless of your personal feelings towards 2600, Emmanuel has done more than (I venture to assume) anyone else here to fight the good fight.
What still astounds me is the sheer ignorance and incompetance demonstrated by Kaplan. I wasn't expecting him to become an expert in the internet and related technologies over the course of this trial, but I was really hoping he would at least demonstrate basic reasoning skill and comprehension.
Appearently he was a little too "in the pockets" so to speak of his former employers (MPAA) to reason with the facts he was presented, and simply allowed his hostility towards 2600 to dictate his thinking.
My scary prediction of the future is that after HDTV gets off the ground and analog recording is replaced with tightly controlled digital recording, fair use will still probably be allowed, but technically impossible by the restriction placed on media and recording devices. Of course, the MPAA will blame "hackers" for taking away "joe average"'s ability to record stuff, claiming they had to to prevent the non-issue of piracy and probably point to this case as an example.
So when the public finally realizes what is happening with all this DMCA stuff, don't expect them to be outraged at the MPAA. I'm pretty sure the MPAA already has a PR game plan to blame us when the time comes.
Slashdot Mirror
Although it appears that you're not trying to support the judges attitude, it appears to me that you're failing. Basically, you're saying, "it's too bad, it's not fair, but it's their fault that they are getting screwed by the system.", right? Explain to me how what you're saying is different than "well, she wouldn't have had such a hard time proving that she didn't sleep with Bob if she hadn't slept with Tom, Dick and Harry".
You go on to re-iterate that it's not fair. What I'm missing here is your point. I read "they are reaping what they have sown" to mean "they brought this on themselves", or, in other words, "it's their fault". Then later I read that it's wrong that this is happening. In other words, "it's the system that's wrong". I put these together to mean "reputations shouldn't matter, but they do, so they shouldn't have gotten a bad one, poor fools".
The article already points out that the judge was apparently biased against 2600 because of their previous publications, and that this is wrong. So what you are adding is that, because their description of what's wrong with various security models reads to you like instructions for crackers they have brougt it on themselves? It just keeps sounding to me like you sympathize with the judge even though you know you shouldn't.
Not a flame, just wondering if you can clarify your point, or tell what you think they should have done differently. Would it have gone better for them, in your opinion, if their past articles had been less of a how-to and more cold and clinical? I'm just not getting it.
thanks,
mike
--
Liberty uber alles.
It'll help if you've ever read an issue of 2600. I've got about a dozen of them, as the local bookstore carries it from time to time.
2600 is not exactly Scientific American. There doesn't seem to be a whole lot of editing, and many of the articles are written in an informal, spoken-word kind of voice. It's not as bad as 3133t3 sp33k, but there's a lot of slang, bad grammar, and the like.
There's also a lot of "fight the Man!" rhetoric and quasi-revolutionary language, and the occasional thinly-veiled disclaimer. "This is totally illegal, and you should never do this, but if you wanted to here's how to do it...."
The impression created by reading a typical 2600 issue is eavesdropping on a conversation at a prison for tech-savvy criminals. It's not a fair impression, and it's more for show and image than substance ("We Bad! We 3133t3!") But 2600 manages to convey the message that it and its readership don't have much respect for law or law enforcement.
So when 2600 gets boned by a group of _real_ criminals (posing as Fine Upstanding Captialists) it's hard to imagine any judge reading a stack of 2600s and coming away with any sympathy for them. Page after page of "how to crack this system" and "how to phreak this phone" doesn't install much confidence in the argument that DeCSS wasn't intended as a copying/pirating tool. Page after page after tedious page of "Our legal system sucks. Judges are all corrupt. Free Kevin!!" rhetoric doesn't do much in the way of image building either.
What _really_ sucks is how much influence all this seems to have had on the judge - because once you get past all that noise and look at this case at the pure merits, it's obvious that the MPAA doesn't have a leg to stand on. If the legal system really was 100% pure logic and objective reason, the case would be done by now, and the MPAA would have been sent packing.
But that's not what happened. Obviously, 2600's somewhat grey-hat presentation style made a bigger impression on the judge than the actual facts of the case. And given that 2600 has worked very hard to create that "Hax0r 3133t3" image (that is now biting them very hard) they are reaping what they have sown.
I'd bet dollars to doughnuts that if 2600 was a little more like Scientific American, and a little less like the Hax0r Pravda, that their troubles would be a lot less.
And yet, the fact that a change of editorial voice could sway a judicial proceeding is truly a Very Bad Thing. That 2600 ran afoul of the law is just Karma; that the judicial system was unable to look past the bullshit and see the real case is... disturbing.
So I'm torn myself. On the one hand, I see 2600 getting a little Karmic balancing for all the "on the edge" stuff they've done. On the other hand, to see them lose a meritorious and _important_ case because of their image (and the associated implication that if you want to have your rights protected by the courts, you had better toe the editorial line) strikes me as wrong too.
And in all of this, I see the litigational genius of the MPAA's legal team. They've picked the perfect target, one that is going to have to work very, very hard to create any sort of judicial sympathy.
Does that help at all?
DG
Want to learn about race cars? Read my Book
Too many of the analogies mentioned in the article are just too ludicrous to get past a higher court, and so this seems to be a way of passing the buck. My guess is that Kaplan knew that no matter how he ruled, he would not have the final say, and thus made things even more likely to move up.
I'ld better stop now. I'm having too much trouble passing my thoughts to my fingers.
Bill - aka taniwha
--
Bill - aka taniwha
--
Leave others their otherness. -- Aratak
This fight needed to be fought. Sure, meekly complying with the bully would have kept 2600 et al out of court, but where would we be in terms of getting fair use back? The MPAA might be fighting a battle that, in all practicality, is as good as lost, but that doesn't mean they deserve the legal clout the DMCA gives them. What would happen if more laws (similar to the one alluded to on 2600 now, regarding reverse engineering - anybody got more info on that?) further restricting your rights to use/peruse/disseminate information get passed?
I don't like slippery slopes - and the good folks at 2600 are fighting tooth and nail to keep us from taking the first step down this one. They deserve our help, everyone - support the EFF!
Karma: Excellent, but still won't get you laid.
Some of what you're saying is true, but some of it is way off base. Let me try to cut through some of the mindless babbling.
1) 2600 didn't create the tool to bypass the encryption. Someone else did. Regardless, that's not the core issue of this case.
2) The judge has now prevented 2600 from linking to DeCSS. That in itself is pretty questionable.
3) The judge should be interpreting the law. So is his ruling correct? Perhaps so -- the DMCA may not be palatable to us, but it is there. However, he is still a judge. He should be setting aside his personal biases towards 2600's reputation.
4) The basis for appeal will probably be on First Amendment grounds, regarding the distribution of source code. As others have already pointed out, other cases have already succeeded in this area. That's 2600's goal, and if it works, it is likely that the DMCA or portions of it will be ruled unconstitutional.
Their few defenses were bullshit. Development of a Linux player?
Yes, and as you pointed out already, there is a clause in the DMCA which specifically allows reverse engineering for interoperability purposes.
Well besides the fact that developing an Open Source Linux player would be drastically violating DVD-CCA's intellectual property, (they spend money developing CSS, and they get that money back through licensing)
The encryption was a trade secret which is more or less fair game once the cat's out of the bag.
Best regards,
SEAL
At the bottom of the 2600 article, it reads: We would give out an address for the MPAA but they've been blocking e-mail for some time and blaming hackers for every problem they have. So give them a call at (818) 995-6600 from 9 am to 5:30 pm Pacific Time. Be civil but make sure you get your point across. After all, where do you think that $4 million ultimately comes from?
So, I called. The call went something like...
MPAA-Drone #1: Hello, Motion Picture Association of America.
Me: Hello, I'd like to speak to somebody about the DeCSS case.
MD1: The what?
Me: The DeCSS case.
MD1: Ok, um... [fumbles around] Let me transfer you.
MPAA-Drone #2: So-and-so's office, how can I help you?
Me: I'd like to know if the MPAA has an official position on the recent DeCSS ruling.
MD2: You want what? In what capacity would you like to know?
Me: I am a consumer of many of the MPAA's fine products, and would like to discuss the DeCSS case.
MD2: [thinks long and hard] OK, let me transfer you...
Emily Cutner: Hello, MPAA PR dept. How can I help you?
Me: Hello, I would like to discuss the DeCSS case with a representative of the MPAA.
EC: Well, we would greatly prefer it if you would send us your opinions via Email. You see, we have only a few legal analysts on staff [ed: yeah right!] and they are busy pursuing other matters. With Email, your digital voice can be heard, and we will gladly respond. Also, please check out our web page, where we have a FAQ [etc. etc.]
Me: Well, who should I send my Email to?
EC: I am the PR Manager for Anti-piracy. My email address is emily_cutner@mpaa.org.
Me: You mean that anyone who wants to express their opinion about the DeCSS case shoudl feel free to email you personally?
EC: That's right.
Me: Well, thanks so very much.
Can your IM do this?
Actually, I think you don't get it.
The act of breaking into a bank is illegal, and it should be rightfully so. The point Emmanuel is making is that the law against distributing information is unconstitutional.
The act of distributing information about how to break into a bank in general, or a branch in particular must be protected under the First Amendment, just as instructions on how to build a bomb are currently protected.
The act of distributing information about how to decode a DVD, protected by cryptography, must also be protected, for source code is speech. The distribution of the source code does not constitute an act of theft, just as publishing instructions on how to build a bomb does not constitute an act of terrorism.
Both instructions can be used for legal and illegal purposes. The act of using such instructions to perform an illegal act is, and must continue to remail illegal.
My car gets 40 rods to the hogshead, and that's the way I likes it!
Given the circumstances surrounding the trial, an appeal will almost certainly be heard. Kaplan was clearly biased, and was hostile towards the defense.
He probably should have rescued himself before the trial started, because this left a huge case of conflict of interest. His personal opinions of Mr. Garbus destroyed any chance at a fair trial.
SO yes, the MPAA won this round... But there will be multiple appeals. Probably all the way to the supreme court. Given the court's recent history in copyright/tradesecret cases, it wouldnt surprise me if 2600 wins at this point. It may have to go all the way to the Supreme court before they win, though.
tagline
... hi bingo
I located a copy of the Bernstein v Dept of State ruling (http://www.eff.org/pub/Privacy/Crypto_export/Bern stein_case/Legal/960415.decision), which among other things states this:
"For the purposes of First Amendment analysis, this court finds that source code is speech."
The UTTERLY FRIGHTENING thing is that Kaplan held that DeCSS WAS speech! He said it was also functional, and that banning it was a content-neutral regulation that was narrowly tailored to advancing an important governement interest. That is he applied the intermediate scrutiny test, citing US v O'Brian that the governement can ban burning draft cards.
He ignored without comment the fact that Congress explicitly stated that the DMCA did not "diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products. " [1201(c)(4)].
He then put elipses (!!!) over "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; " when he quoted 1203(b)(1)'s empowerment of judicial injunctions. [p83]
Once again. Kaplan admits DeCSS is 'protected under the 1st amendment' !!!! In his own words:
"As computer code--whether source or object--is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated. In that sense, computer code is covered or, as sometimes is said, 'protected' by the First Amendment." [p51]
"It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine." [p50]
Actually, I do own the content, if I recall what I've read on copyright law correctly. The MPAA has been saying that I don't, but I've paid them money for a copy of a copyrighted work. I OWN that copy, but I cannot create additional copies, except as allowed by fair use legislation.
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (C.D. Utah 1997)
"This Court holds that transactions making up the distribution chain from Novell through NTC to the end-user are "sales" governed by the U.C.C. [Uniform Commercial Code] Therefore, the first sale doctrine applies. It follows that the purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner."
ANALYSIS OF THE DECISION AGAINST 2600
08/21/00
Facing a major lawsuit is a lot like facing a major illness. It's expensive, time consuming, and there are a million other ways you'd like to be spending your time. But if you don't devote all of your attention to fighting it, your continued existence is profoundly endangered.
That's how this thing has been affecting us since it started back in January. It's greatly interfered with the magazine, production of our film, and organization of our conference. But it was necessary - essential, in fact - and most people seem to understand why.
It's a real shame Judge Kaplan wasn't one of those people.
From the first teleconferenced hearing to the pretrial motions all the way through the trial, I was amazed by what appeared to be unfettered hostility towards us and the many points we attempted to make. I don't see how anyone looking through the transcripts would have any difficulty seeing this. But we all held out hope that this wouldn't be present in the decision.
Were we ever wrong.
See, in my mind, this case has always been about common sense. Someone cracked someone else's badly protected encryption scheme. Game over. It's shot to hell. You don't continue to use bad encryption or pretend it didn't happen. Yet in November, that's exactly what we saw happening. And even worse, we saw people being intimidated into taking down web pages that had the offending code on them.
It was insane! It reminded me of the one car crash I've ever been in where a garbage truck ran through a stale red light right in front of me on 8th and Avenue A in the East Village. The driver tried to intimidate the people who came forward as witnesses, telling them, "You didn't see anything. Get out of here!" But if you know the East Village, you know it's not the place to intimidate people and get away with it. It's also where a lot of the "weirdoes" hang out. So to me, it's always had the mindset of the net. And that's why I've always been comfortable in both environments. And, yeah, the garbage guy got in a shitload of trouble.
The kind of honesty you get by having individuals who aren't afraid to express themselves has always been a threat to those who imagine themselves in power. Until recently, the net was the only place where individual opinion actually had a chance. If the media wouldn't tell your story, YOU could become the media and tell the story yourself. The whole world could be your audience.
I won't even get into how the net is being destroyed by advertising and conglomeration. There's no time to go on the offensive when so much time has to be spent defending one's very existence. Every day we get new reports of people being threatened in some way by some huge corporate entity because their opinions and free expression don't sit well. Years ago, this sort of thing would have been laughed at. Today, it's a very different story. Voices are being silenced, criticism is being eliminated. And very unfortunate precedents are being set.
This is all made possible through bad legislation, things like the Digital Millennium Copyright Act, which has made this lawsuit possible. Unless stopped, there will be many many more like it in the future. And many more bad laws as well. Until we overturn this thing, the danger to all of us is incalculable.
Just for the fun of it, I tried to find out who had voted for the DMCA, so I could make an extra effort not to vote for them. But they did it with a voice vote - there is no record. How reassuring.
So now we have this law that basically says we are not allowed to show people the failings of technology if the people controlling that technology decide they don't want us to. An expansion of this law which could go into effect in October would make it illegal to even TRY to find failings in such technology.
It makes you want to scream. Concepts that most 12-year-olds can grasp and understand the value of are being signed away to entities that are already far too powerful. And the result is what we have been going through extended to however many more want to try and stand up for our vanishing rights.
To get back to the naive notion of common sense that we've been clinging to throughout this ordeal, we thought, no, we KNEW the right thing to do last November was to report the story and to publish the programs. And nobody here is ashamed of the fact that part of the reason for doing this was to show support for people who were being bullied. I've never liked bullies, whether they be kids, teachers, parents, cops, governments, or corporate giants. What they were doing to these people was wrong and we felt that our standing up might make a difference.
Well, it did. But not in the way we expected. Suddenly, WE became the problem even though we had nothing to do with the encryption being cracked or even with the initial release of the story. It was as if someone painted an insult on the side of a building that everyone in the world could see. A newspaper comes along and does a story on this and prints a picture of the building and is then blamed for the insult. Oh, and let's also point out that no matter how hard they try, nobody can wipe the paint off the wall. The way things are today, we're supposed to pretend nothing is wrong and if we dare to report otherwise or present evidence to the contrary, we will take the full brunt of the blame. Sounds like some weird medieval monarchy to me.
The sad fact is that we never had a chance in this court. A mere reading of the decision shows this more clearly than anything I could possibly say. "Not surprisingly, 2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, access other people's e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores and Federal Express." The fact that he would use the phrase "not surprisingly" speaks volumes as to his opinion on our value to society. It is, at best, utter ignorance and only proves beyond any shadow of a doubt how thoroughly Judge Kaplan bought into the MPAA's warped notions of what our magazine is about. We printed an article on weaknesses at Network Solutions that allowed domain names to be stolen. Guess what? They FIXED it as a result of this article and now, domain names, including our own, are not at risk of being stolen, at least, not as much. (Had Kaplan ruled on THAT issue, it would have been illegal for us to tell anyone this and the security holes would still exist.) The same holds true for many of the other security weaknesses we report on. But, as we tried fruitlessly to explain, we exist to report the story, period. Someone may fix the problem because of the story or someone may exploit it. We cannot and will not determine what happens as a result nor will we allow fear of that to make our editorial decisions for us.
Kaplan also seems to share the MPAA's amazement that we would actually copyright our magazine and our web site. ("Interestingly, defendants' copyright both their magazine and the material on their web site to prevent others from copying their works.") It's clear he believes that we have no respect for or belief in the concept of copyright. He either wasn't paying attention during my testimony or simply refuses to believe that copyright is necessary to prevent someone else from taking credit for and control of your work. I repeatedly said that copying was not our concern. What the MPAA is attempting to do with copyright is not at all in line with its original intent.
I also find it amazing how Jon Johansen's credibility is wiped away on two occasions with a single sentence. ("[T]he Court finds that Mr. Johansen and the others who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player if, indeed, developing a Linux-based DVD player was among their purposes." "Substantial questions have been raised both at trial and elsewhere as to the veracity of Mr. Johansen's claim.") Yet not a single ounce of proof that he wasn't being totally honest is ever presented. I mean, we had PLENTY of questions both at trial and everywhere about the MPAA's veracity. But our saying that wouldn't be enough. Why is it that the MPAA is able to so easily put words in a judge's mouth?
The flaws in logic abound. At one point publishing DeCSS is compared to "the publication of a bank vault combination in a national newspaper. Even if no one uses the combination to open the vault, its mere publication has the effect of defeating the bank's security system, forcing the bank to reprogram the lock." First off, this isn't at all similar to what happened. If this analogy were to be correct, someone else would have already published the combination and we would simply have published the SAME information that had already been made public. Second, the security system of the bank was compromised the moment the combination was released or leaked to the public, NOT when this fact was reported in a newspaper. This method of blaming the messenger for the message has been used throughout the world to shut down opposition newspapers and imprison people who don't follow the party line. It's troubling to see it applied here.
Now, on the question of this theoretical bank being forced to reprogram its lock, would anyone hesitate to suggest that that is PRECISELY what they SHOULD do? A bank that didn't do this would probably be prosecuted for negligence. So why doesn't Kaplan apply this logic in his own analogy to the MPAA? Because of this: "Development and implementation of a new DVD copy protection system, however, is far more difficult and costly than reprogramming a combination lock and may carry with it the added problem of rendering the existing installed base of compliant DVD players obsolete." So basically, a security hole can be left in place if it's too expensive to fix and anyone who exposes the continued existence of the hole can be prosecuted? Riiight....
Meanwhile, a few pages later "the Court holds that CSS effectively controls access to plaintiffs' copyrighted works." That made me laugh. Would we be here today if THAT were true?
At one point, DeCSS is compared to an epidemic. But even in that odd analogy, it's recognized that finding the original source of "infection" accomplishes nothing. It's a nifty metaphor but I don't see what it does for the case against us.
Another time, DeCSS is compared to an assassination. No kidding. "Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement." You get the feeling he's deliberately equating computer code with something bad? Maybe it's me. But let's look at this somewhat logically. A political assassination is a completed act. A computer program isn't completed until someone copies it, compiles it (if it's source), and executes it on the proper platform in the proper setting. A more accurate comparison would be to compare INSTRUCTIONS for an assassination to a computer program. They both require someone or something to act upon the instructions before the task is complete. By outlawing all talk of assassination, including those within works of fiction, we achieve the same level of protection that outlawing dissemination of DeCSS accomplishes.
Naturally, one of the most important issues here is that of "fair use" which is something the DMCA appears to be taking away from us. In other words, you are entitled to excerpt portions of copyrighted works for all kinds of purposes. It's also not illegal to make backup copies. These are very fundamental and important concepts. So how do we get around the restrictions that we're now finding in new digital media? Judge Kaplan addressed that important issue this way: "[A]ll or substantially all motion pictures available on DVD are available also on videotape. In consequence, anyone wishing to make lawful use of a particular movie may buy or rent a videotape, play it, and even copy all or part of it with readily available equipment." THAT'S the solution to the "fair use" issue - use old technology that isn't affected by the DMCA?! Not exactly a graceful way of ducking the issues.
Another thing that bothers me is that it doesn't seem to matter in the least WHY DeCSS was written. The fact is that DeCSS was written to circumvent CSS and, even if that was done specifically to cure world hunger, in the eyes of the court, it was a violation of the DMCA. If this is the case, then it's pretty obvious that the DMCA is one screwed up piece of legislation that has to be thrown out. But the judge goes way beyond this, insulting our integrity and existence at every possible opportunity and making no secret of the disdain he feels for the entire case of the defense. One has to wonder why he found that necessary if it was such a clearcut violation.
Naturally, one of the most disturbing parts of all of this is the ruling on linking. "The only distinction is that the entity extending to the user the option of downloading the program is the transferee site rather than defendants, a distinction without a difference." We can all laugh at such words but they represent something very sinister. We are now expected to believe that telling someone how to get a file with a link is the same as offering it yourself. I want to know if this works both ways - if I point someone to a site or product that costs money, is that also a "distinction without a difference" that will allow me to be compensated? This kind of logic is already giving me nightmares.
Finally, there are the disturbing words on who we are and what we stand for and how this is somehow relevant to the decision. "Defendants are in the business of disseminating information to assist hackers in 'cracking' various types of technological security systems. And while defendants argue that they promptly stopped posting DeCSS when enjoined preliminarily from doing so, thus allegedly demonstrating their willingness to comply with the law, their reaction to the preliminary injunction in fact cuts the other way." Interesting, isn't it? Our "reaction" is enough to condemn us, even though we followed the injunction to the letter. By speaking our mind and encouraging others to do what we alone were forbidden from doing, we are somehow in the wrong. How is this even relevant to the law? Are people who believe in certain things or associate with certain people to be treated differently? In Judge Kaplan's mind, we "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." This is, to say the least, insulting and just plain wrong. I challenge him to find a single instance where we have ever supported piracy or accessing private information. These ignorant generalizations sound more like the work of Jack Valenti's ghost writer.
What too many people don't seem to realize is that the rules have changed overnight and it WILL affect them. Imagine not being allowed to lend a book to a friend. Imagine not being able to play music that you bought in another country. Imagine only being able to watch "approved" content on your DVD player. And just wait until HDTV comes around and makes it impossible to record anything unless you pay. These are all natural extensions of the existing restrictions and they are all now perfectly legal. You've lost the right of "fair use" with copyrighted material that you think you own. In actuality, you've just bought a license to do what they tell you.
So, after all is said and done, I have to echo what all of the legal experts have said so far: I'm not at all surprised. This is how we expected the first round to go. It's now time to focus on the Appellate Court and eventually, since whoever loses next will most likely appeal, the Supreme Court.
Everyone is asking what will happen to us and how they can help. Well, we were pretty fortunate that Judge Kaplan didn't choose to hit us with the MPAA's legal bill, like they wanted him to. Their legal fees are believed to be in excess of $4 million so that definitely would have caused a delay in the next issue. It should also make it pretty clear that the MPAA has no qualms about utterly destroying anyone who gets in their way. And it should also make it clear how important we think this is that we would risk such a thing. And ironic that none of us even HAS a DVD player.
We're also extremely fortunate that the Electronic Frontier Foundation was around to fund our defense. If anything has proven the value of the EFF in looking after civil liberties in the modern age, this has. I can't emphasize enough the importance of heading over to http://www.eff.org/support/joineff.html (I'm actually afraid to make a link now) and donating as much as you possibly can to keep this case going. Explain this to as many people as possible and get them to do the same.
If there's anything good to come out of this decision, it's that we'll get to continue working with our legal team who have been absolutely amazing from the start. I've never seen a group of people so dedicated to learning and understanding the facts. It's a real honor to be among them and it's really changed the way I look at the entire legal profession.
As for what you can do to help, apart from the above, that's really up to you as it's always been. If you believe DeCSS is a form of speech, a means of access for alternative operating systems, or a necessary step towards "fair use" of digital media, then spreading it throughout the world is extremely important for the preservation of those freedoms. If you're in the United States, be aware of the risk you are taking. And if you're one of those people who really buys into the MPAA notion that DeCSS is a tool of piracy, please DON'T do the above because you're missing the entire point.
We can no longer post DeCSS on our site nor can we link to it. We still have the right to list those sites that have it in non-linkable form and we also have the right to speak out against the injustice we're being hit with. The MPAA would like those rights taken away as well. We cannot allow them to succeed.
There will be further leafleting campaigns in the weeks ahead. Keep checking this web site for details. And please let us know your opinions - dvd@2600.com. We would give out an address for the MPAA but they've been blocking e-mail for some time and blaming hackers for every problem they have. So give them a call at (818) 995-6600 from 9 am to 5:30 pm Pacific Time. Be civil but make sure you get your point across. After all, where do you think that $4 million ultimately comes from?
emmanuel
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Like (I suspect) many of you, I have the Anti DVD-CCA shirt. One of my coworkers pointed out the absurdity of prohibiting linking; We know already that I am guilty of a crime by owning the shirt, especially if I wear it in public, because I am an illegal source code archive.
If he points to my shirt, is he guilty of making a link to an illegal source code archive?
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Goldstein makes some very good points about what is to come with the DCMA, HDTV, and various future technologies and extreme consumer rights violations.
n stein_case/Legal/960415.decision), which among other things states this:
What confuses me is that the judge's ruling is directly at odds with both other caselaw (namely, the Bernstein/PGP ruling) and supreme court cases such as flag burning.
I located a copy of the Bernstein v Dept of State ruling (http://www.eff.org/pub/Privacy/Crypto_export/Ber
"For the purposes of First Amendment analysis, this court finds that source code is speech."
Returned Peace Corps IT Volunteer
Sorry - you missed too :-)
Orson Welles was a radio broadcaster who recorded H.G. Wells War of the Worlds
H.G. Wells was a Victorian science fiction novelist. (granted, that's an irrelevent point, but credit where it's due, eh?)
George Orwell wrote 1984 which was indeed a good book, and featured Emmanual Goldstein as the head of a mythical revolution. Goldstein's figure was used to focus national pride and hatred of a most feared enemy. These feelings were used to keep the sheep like public focused on issues other then the corruption of their government
Thanks for the mirror, too bad /. clipped the end of it there.
All I can say is that I share Mr. Goldstein's shock and dismay, and I'm spreading the word about this travesty of justice to everybody I know. Most non-hackers that I talk to are amazed that such a thing can go on in the land of the free. We need to get out and tell real people about this - tell your brother, your Mom, your boss, and try to explain that justice has not been served. Mr. Goldstein covers this territory more eloquently than I could ever hope, so I'll close with another exhortation to get the word out about this.
...posted from behind a firewall that keeps out those "evil 2600 hackers"...
Your right to not believe: Americans United for Separation of Church and
Everyone who can should go over to the EFF web site and donate some money for the defense.
Become an EFF member while you're at it.
That single act will probably provide more benefit to the future of the United States than voting this fall.
Torrey Hoffman (Azog)
Torrey Hoffman (Azog)
"HTML needs a rant tag" - Alan Cox
The licences are obtained from the DVD Forum (formerly the DVD Consortium) which originally consisted of 10 big electronics companies (Hitachi, Matsushita, Mitsubishi, Philips, Pioneer, Sony, Thomson Multimedia, Time Warner, Toshiba and Victor).
There's definately some licenced DVD players for Linux in development (e.g. PowerDVD-Linux), but I don't see how any open-sourced version could ever be legal under the terms of the licence; disclosing the decryption source code is not allowed, as any and all information that you get with the licence is covered under an NDA.
This snippet from the site linked above shows the prices involved:
3. License Fees are now required for the right to use the Format Books. The License Fee is US$10,000 per DVD Format for each Product Category, as specified in Schedule A-1 of the Definitive License.
Example: If a licensee wishes to manufacture DVD-Video players, the licensee shall pay US$20,000 since it needs to obtain licenses for DVD-Video Book and DVD-ROM Book, both to be used for Product Category II (DVD Players).
Example: If a licensee wishes to manufacture DVD-RAM drives and DVD-RAM discs, the licensee shall pay US$40,000 since it needs to obtain licenses for DVD-RAM and DVD-ROM Books, to be used for Category I Products (DVD discs) and Category II Products (DVD drives).
Here's a link to the text of the licence (PDF format).
Click here for a story about the Austrailian 2600 that won't take the code down. They don't just link to it, it looks like they are actually hosting it.
As much as I hate to say it, as much as it sucks, I'm afraid 2600 is fast becoming a victim of their own reputation.
The editorial linked to is intelligent and well-written. The defense case made for 2600 well-argued, well-presented, and logical. But the fact remains that large portions of the 2600 issues that I have read appear to be written as how-to documents for crackers and would-be cyberterrorists.
Now you and I know that, at best, your typical 2600 Hax0r is more of the network equivelent of the flaming bag of dog shit left on a front porch than a series threat to national security - but the judge doesn't see that. The judge sees a small-time larcenist with his hand caught in a bigger bag, and a long-running distain for law enforcement and legal proceedings. (Free Kevin! indeed)
No wonder that, despite their truly iron-clad defence, that the judge gives them almost no credibility. Imagine a skinhead trying to sue for (legitimate!) racial discrimination, and you get the idea.
It's not right, and it's not fair - but it's not suprising either. 2600 is reaping the harvest they have sown the last few years.
Give the MPAA credit - they knew _exactly_ who to tackle first. When you seek to set precident, attack the weakest defendant, then move on to the strong.
It's wrong that what is supposed to be an objective exercise in logical deduction has turned into a public relations contest, but that's what it is.
Good luck 2600 and the EFF. You need it.
Want to learn about race cars? Read my Book
What confuses me is that the judge's ruling is directly at odds with both other caselaw (namely, the Bernstein/PGP ruling) and supreme court cases such as flag burning.
Well, first of all a judge can basically do whatever he wants. The appeals courts are there exactly to deal with bloopers, judge prejudice and just plain ol' stupidity. A judge doesn't have to follow case law. He makes case law. [nitpick] Well, really in the US it's the Circuit Courts that make case law, not lower-level judges, but the idea is still valid[/nitpick].
Second, even technically, the Bernstein/PGP ruling took place in California AFAIK. This is a different circuit and it is not binding on Judge Kaplan. Of course he would have been wise to read it carefully and think about it, but I as sure that his wisdom has already been commented on.
And I don't see much in common between flag burning and source code, other than the fairly obvuous fact that "speech" does not necessarily have to be speech, or even text.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
Anyway, it is the fair use issue that is significant here, and what's more, I think further attention to the matter should be to show that it is not DeCSS that is wrong, it is CSS that is immoral. CSS is specifically designed to deprive people of their fair use right, a right that is an important part of free speech.
I thought that when Garbus asked Valenti about what a student could do if she wanted to play a 3 minutes of "Schindler's List" and Valenti replied that she could get the analog version, I felt it had to be obvious to anyone that CSS did take away fair use rights, but Kaplan actually bought Valenti's argument. I can't believe it. I just can't believe it. How ignorant is it possible to get? Yes, today, analog versions exist, but they won't in a few years. I mean, I have a hard time awarding voting rights to people who are as ignorant as Kaplan was in this case, and when a judge exhibits such extreme ignorance, then democracy is at stake.
In the appeals, it should be very easy to demonstrate that Kaplan put words in the defendants mouths that they had never expressed, and that he was completely ignorant about matters of fundamental importance.
CSS is immoral. The engineers who designed CSS should have understood the consequences of what they where told to make, and should not have made them. That's their social responsibility. It is obvious that CSS takes away fair use rights. It is less obvious, yet important to realize, that it is a threat to free speech if a single body controls distribution of human communication. If DVD gets popular, you can't distribute communication by any other carrier, so in principle, it puts DVD-CCA (?) in the position that they can deny someone to produce a movie that is critical towards e.g. MPAA. Now, it is probably a long way before this is going to happen, but it is a serious threat to free speech if you make it possible. Therefore, I think it is important in the following to hammer on the point that it is not DeCSS that is immoral, it is CSS, and that breaking CSS was a moral act.
Talking about social responsibility, 2600 has one too, and sometimes, they should consider what the consquences of reporting a story is, that's the only bad feeling I get when I read the article, they seem to run away from the social responsibility of reporting a story. I think they would have been much better off if they said that "yes, we are responsible for reporting this story. The consequence of reporting this story is that a security hole will be fixed faster/it is being pointed out that MPAA is taking away our fair use rights", etc.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
This guy does sometimes impress me, and regardless of your personal feelings towards 2600, Emmanuel has done more than (I venture to assume) anyone else here to fight the good fight.
What still astounds me is the sheer ignorance and incompetance demonstrated by Kaplan. I wasn't expecting him to become an expert in the internet and related technologies over the course of this trial, but I was really hoping he would at least demonstrate basic reasoning skill and comprehension.
Appearently he was a little too "in the pockets" so to speak of his former employers (MPAA) to reason with the facts he was presented, and simply allowed his hostility towards 2600 to dictate his thinking.
My scary prediction of the future is that after HDTV gets off the ground and analog recording is replaced with tightly controlled digital recording, fair use will still probably be allowed, but technically impossible by the restriction placed on media and recording devices. Of course, the MPAA will blame "hackers" for taking away "joe average"'s ability to record stuff, claiming they had to to prevent the non-issue of piracy and probably point to this case as an example.
So when the public finally realizes what is happening with all this DMCA stuff, don't expect them to be outraged at the MPAA. I'm pretty sure the MPAA already has a PR game plan to blame us when the time comes.
Finkployd