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More On Kaplan's Ruling Making Links Illegal
Meenik sent us a wired news article on Judge Kaplan's ruling that effectively makes linking things like DeCSS illegal. This is a little bit more extreme of a piece then our coverage
here a few days ago but its worth a read.
Q. Does Adrian Bacon read the Linux Advocacy Howto?
A. No. He is too busy reading Slashdot.
Viva Anales!
(paraphrased) "2600 is metaphorically driving people to houses so they can rob people"
Hm. My local metropolitan transporation authority (read: public bus) gave some crazy guy a ride to the bus stop in front of my apartment and he broke into my house, so I'm going to sue the transporation authority so they can't actually bring people anywhere, just tell them where to go.
Damn, sometimes I just think that America litigation is there just to provide laughs. Then I realize that it affects me and I wish that we could just some how abolish entities like the MPAA after providing such a stupid and flawed statement and enforcing it in court.
nerdfarm.org
Dacels Jewelers can't be trusted.
No problem, as long as selling my mailing address is made illegal, putting my phone number on telemarketer call lists is illegal, spam is illegal.
All of these are links, of a different sort - They all point you to products and/or services. Linking to something, even if the "something" is illegal, isn't the point.
Don't pick up the pho*(@)$*@&@!@ NO CARRIER
It is nice to see a reporter like Declan, that actually knows something about what he writes.
This case is NOT about the legality of DeCSS, it is about muzzling the press.
First it is 2600 Magazine, next it will be any news organization. All the oppressor has to do is point to this case as a precident.
This ruling MUST be overturned if we are to retain what little freedom we *think* that we have left.
Visit DC2600
Eve Fairbanks says I drive a hybrid!LOL
This ruling seems to say that sticking one's head in the sand is enough to make problems go away. Not being permitted to link to things which are illegal is the same as denying their existance. This is Ostrich-like behavior.
Now that linking is illegal, what are the ramifications for print materials? This seems to say that a writer writing a book about a fictional drug dealer is unable to go speak with real ones. That is the real life equivalent of linking. A sports writer writing about the effects of certain kinds of steroids will be unable to list his sources, because listing a source is the print equivalent of a link.
How many levels of linkage does this ruling apply to? If my Japanese counterpart makes a page of links to illegal things, and then I link to that page, is that illegal? What if someone links to my page? Are they responsible, too?
--Jeff
HELP! HELP! I'm being redressed!
The REAL jabber has the /. user id: 13196
The REAL jabber has the user id: 13196
What you do today will cost you a day of your life
Um, huh?
I didn't know we were talking about a 'device'.
And as far as I knew, DeCSS was created so that someone could view a legally purchased DVD on a non-Windows computer. Unless of course you swallowed the other side's story hook line and sinker.
I guess we should know by now that the government, and the judicial system, are there to protect the poor little business from us big bad and nasty consumers that actually want to use the products we purchase. Silly me.
Bite my yammer.
For its part, 2600 simply removed the links to copies of DeCSS. But they left the non-HTML versions of the addresses intact, so visitors can simply copy and paste them into a browser window.
Now I'm two clicks away from DeCSS, damn!
- ZDNet: Decision is "Shocking"
- San Jose Mercury News: DMCA comes back to haunt consumers
And so on. Also, Emmanuel Goldstein posted his comments on the decision on 2600 a couple days ago (I'm not sure if that's showed up onOK, in the wake of this decision that everyone is obviously upset with, I figured I would throw something else into the fray here. With this recent ruling, we have found out that it is now illegal to even link to a site with illegal information (or at least information which is the property of big corporations who have alot of money and interests to protect). This is a very interesting ruling and sets quite the precedent, which could come into play very soon.
The questioning over links to illegal material is not a new one. The biggest example that I can think of here would be the Napster cases. They are effectively in trouble because they are providing links to illegally copied material. Not only has Napster gotten in trouble for this now, but 2600 has as well. I think we are starting to see a trend here.
Not only is it now illegal to carry the illegal information in the Unites States, but it is illegal to link to said illegal information. An interesting implication of this would be banner ads. What do you do when a child is using the computer and "subjected" to all the porn that they innevitably are (note the dripping of sarcasm). If this porn is provided through a banner add, that page has effectively become illegal. Who is to blame for this if the banner is supplied dynamically, the provider or the page owner?
Also, does anybody know how this works in physical print? What is the punishment for containing information on obtaining illegal information? Can you get in trouble if you write a letter to the editor which contains directions to a cache of kiddie porn? Where is this line drawn?
First of all, I'd like to just say I'm grinning wildly at 2600's response. "Oh, we can't have it hyperlinked? That's okay, we'll just make it inline text." Following the letter of the law, gotta love it.
It never ceases to amaze me how we, the 'net users, are constantly subject to laws created by people that rarely use the internet to do more than scan porn sites and read their email. (Yes, I am talking about the judges, politicians, etc.) Perhaps we are the ones who are causing them to fear what they do not know, however they will never understand their impact unless they bother to learn something.
The internet is possibly the truest form of anarchy (yes, you've heard this before, bear with me) and that terrifies the hell out of these old people in control. We have a system in place that there is no true way to regulate. If we don't like the rules for .uk or .au, we'll just take our domain to .it. There is no way for them to have a law that all countries will agree upon. IMO, the United States is becoming more of a dictatorship when it comes to the Internet than most of the other countries.
As long as these old men (and women) and companies/industries are in control, there will never be a law passed for the Internet that actually protects the individual users. The internet is a communication interface. I wish they would learn to treat it like one.
It has been said that there needs to be a revolution every ten years in order to keep the government honest. I think we're long overdue.
--Lise
Did he just make the whole point of hypertext illegal? Granted, he did just do this for DeCSS, but what about when there are other things on the internet that people don't want you to read... Wait until someone links a corporate helpfile to a specific products bug-traq which raises awareness of a flaw and causes closer scrutiny of the product... One could argue that this "bad publicity" negatively affects the manufacturer's sales... We don't want people to find out about the products they are buying... we just want them to buy them online.
I've got the sales website right now:
Here's a black box with somehting in it that costs $25.00. Here is another made by our competitor that costs $50.00. We'd tell you what it is that we're selling, but you might figure out what our competitor's product is, recognize that one of us is giving a better deal and that would hurt one of our's business... We would tell you what our company is, but then you might know who are competitors are, so we can't even tell you that, and then you might show a preference towards one of us. So all we'll tell you is that we've got a product, and it's for sale. Please send cash to:
P.O. Box XXXXX
Anytown, NJ
and we promise we'll send you whatever our product is.
I've got it... rather than use the internet to spread information, lets restrict it in such a way that no useful information can be obtained.
This vaguely reminds me of something I would see on a Monty Python skit.
You say you want a revolution?
What about this? It's link to a song with the code for descramble.c (the same as on the back of the t-shirts) as the lyrics (only englisised a bit) that I wrote. The originally written DeCSS was GPL'ed. I would encourage everyone to download the song and swap it around on Napster. Maybe we can merge these two cases into one- so /. can post half as many articles regarding the two subjects. "Update on the MPAA vs. Napster proceedings"...
So? From where I sit, I can't tell the difference between Kaplan's head and his ass either.
Let's see if I understand the "reasoning" here.
:-)
1) I live just down the street from a major university. This university has numerous libraries; each contains countless books detailing criminal acts. Some of these libraries include war crime archives - we're not just talking about offing your neighbor here!
2) The library conveniently provides a card catalogue to enable me to quickly identify where to find books detailing poisons, explosives, etc., plus law books that will give me case histories (in the law library) that can help me avoid detection and escape conviction.
3) Since the University benefits from my presence (they charge me to park my car in their lot, depend on citizens like me to defend their cut of the state income tax, etc.), they "vicariously" benefit from any criminal act I perform.
4) The University also knows that Congress wants to criminalize all chemistry textbooks (lest they be used to produce explosives - never mind what that will do to the chemistry, medical and pharmist training), so they must be aware that the information in this library can be used to commit crime - YET THEY DO NOTHING!
5) Therefore, by this reasoning, the University has a duty to burn its card catalogue, remove the dedicated terminals that provide access to the online card catalogue (and, in fact, has superceded it - the last time I was in the library they were using old card catalogue 'cards' as scratch paper), pull the plug on the internet interface to that same online card catalogue, and randomize the location of all books in the library.
Thank God the freshmen just arrived. They always seem to be good at randomizing stuff on campus.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
I have a better analogy than Jack Valenti's pithy masterpiece. Making linking illegal is like criminalizing possession and distribution of marijuana. I'm not taking a stand here on whether criminalizing marijuana was incredibly stupid (it was); I'm just making a comparison. Think about it.
Before Nixon criminalized marijuana:
Pot is distributed (and imported) by stoner college kids.
After Nixon criminalized marijuana:
Pot is distributed through the good offices of those organizations that specialize in dealing with the high risks associated with apprehension and imprisonment, namely, organized crime.
Before DCMA/Judge Kaplan:
Arguably naughty software is obtained by following a link to a server where the software is stored.
After DCMA/Judge Kaplan/other brilliant jurists who follow the reasoning in the 2600 decision:
Arguably naughty software gets distributed through the good offices of those organizations that specialize in dealing with the high risks associated with apprehension and imprisonment, namely, organized crime.
Coincidence? We'll see.
...following the links from the story, I saw some interesting thoughts in the lawsuit between the Church of Jesus Christ of Latter-day Saints vs. some other people, which can be found here. Halfway through all the legalese, I came up with these sparkling gems of wisdom:
Do those who browse the websites infringe plaintiff's copyright?
Blah, blah, blah, copyright stuff, and then:
See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by license, such an act constitutes copyright infringement)
Whoah. So if open Slashdot, and someone posted some DeCSS code, automagically I'm a copyright infringer? But then...
Marobie-FL., Inc. v. National Ass'n Fire Equip. Distrib., 983 F.Supp. 1167, 1179 (N.D.Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer)
Oooooh. This must mean that if I open up, let's say, the Louvre's webpage, and I open up a page with the Mona Lisa, and since I do not own the Mona Lisa and as far as I know I dont have express permission by license, then I'm a copyright infringer?
Finally, it is in the public's interest to protect the copyright laws and the interests of copyright holders.
And you wonder why people don't like big corporations and their lawyers...
Tongue-tied and twisted, just an earth-bound misfit, I
Learning to fly, Pink Floyd.
If/when the 2nd Circuit reviews Kaplan's denial of recusal, I suggest that we submit a brief/petition urging the Appeals court to find that recusal was warrented. If recusal was wrongly denied, all of Kaplan's opinions, decisions, and orders will be vacated. The standard for recusal under 28 USC 455 is:
Note that the standard requires only that "the trial judge's impartiality could reasonably be questioned", not that they must be proven. It is a "significan doubt" question.
As a matter of precedent, see the discussion of Republic of Panama v. American Tobacco Company, Inc. No. 99-30685 (5th Cir. 7/20/2000) in a post I made on openlaw. In that case a judge whose trial association submitted a brief on a "tobacco matter" in an unrelated case should have recused himself even though he did not take part in writing the brief.
Given these standards, do any of the reaonable people out there have "significant doubt" as to the judge's lack of impartiality?
I would say it's more like driving someone across the border into Mexico (or Canada, or wherever) so they can purchase tools with which to burglarize the home.
But what you left out is that the home that they want to pick the lock on ("burglarize") is their own. When Valenti accidently locks himself out of his house, he thinks he should have to get authorization from the lock manufacturer before he's allowed to pick his own lock.
It's worse then that. He thinks that he needs to get authorization from the architect who designed his house. In Valentiville, the architect is free to say, "No", in which case, Jack is forbidden by law from ever entering his house again.
I did a quick search on Google (only because it is my favourite search engine) and found links to webpages that (no surprise) contained links to the DeCSS code. I managed to download that code, then deleted it (because I have no particular use for it). I am sure that the same search on any of the other search engines on the web would produce similar results, so I am not singling Google out here.
Does this mean that Google now has to remove keywords or links selectively because the information they are focuses on might violate some ignorant US legal ruling?
If so then this ruling cannot stand or the entire web will come crashing down around Kaplan's ears.
Looks like Roy Rogers was right when he said "This country has the best politicians money can buy". It also ooks like the only reason that Justice is blind is because it has its head up its ass.
"The first time I got drunk, I got married. The second time I bought a chimpanzee, after that I stayed sober" Arian Seid
The whole point of this case is whether or not DeCSS is illegal or not, though - that issue has not been settled. This most immediate ruling was just an injunction against linking to the code, not a ruling that the code is illegal. Since the code was created via reverse engineering in a country which expressly allows it, I don't see that the illegality of DeCSS is definite. Personally I think it's more likely that the DMCA is unconstitutional than that DeCSS is illegal, but that's just me.
The purpose of the Constitution is to prevent the ill-informed majority or the wealthy minority from dominating the government. The Constitution hasn't come through on this issue yet, but I'm hoping.
Um, no. The U.S. government may have regulatory power over wires which are run within the U.S.. And the U.S. government is bound by the powers enumerated in the Constitution. It is correct to say that Judge Kaplan's decision is an extension to the existing understanding of the Constitution; depending on the results of the legal wrangling it may turn out that the government does not have regulatory power to enforce the DMCA.
It's hardly illegal to tell people that you can get drugs on a street corner downtown. How is it more illegal to tell people that they can download code of questionable (so far) legality from various web sites around the world? And even if it were, is the public benefit of preventing you from passing on that knowledge worth the public cost of the decreased power of journalistic oversight? I bet even the New York Times is quaking in their boots after this ruling, and they're about as establishment as you can get.
In the White House I can tell people that they can get drugs a few blocks away. Journalists are happy to report about all sorts of illegal and unethical things going on in Washington from in front of the White House. The government is not and has never been free to arbitrarily restrict freedom of speech in government buildings; in fact freedom of expression is generally better protected in public facilities than it is on private property.
The public retains the rights, even in the face of a poor judicial decision. Sometimes it just takes a higher court, or even the court of public opinion, to restore justice to the defendants. I couldn't agree more about the administration and the DMCA, although I lay some of that blame on Congress. Interestingly, some former sponsors of the DMCA, including Sen. Orrin Hatch of Utah, have mentioned that these are definitely not the results they intended. Hatch has been fairly critical of the recent actions by the recording and motion picture industry under the Act.
Your right to not believe: Americans United for Separation of Church and
Well ladies and laddies,
:)
My DeCSS T-shirt arrived at my door-step this afternoon. This afternoon is AFTER the Kaplan ruling. The parcel came complete with a printout of the complete DeCSS source on paper (nice touch). It arrived, courtesy of the U.S. Postal Services Priority Mail option. Another nice touch. Thank you Copyleft.
The parcel clearly stated on the label, that it originated at Copyleft - a known named defendant in the DeCSS case.
So my question is this: Is the Federal Government in violation of the DMCA/Kaplan Ruling, by not only permitting the banned code's distribution, but also by contributing to it?
Perhaps, just to be on the safe side, they should open all correspondence, just to make sure that no DeCSS source code, or references to it are contained therein?
BTW: The shirt is sharp. High quality cotton, very legible, crisp printing. Get yours TODAY - before they're sold out, intercepted, burned or otherwise unavailable. Get a few - get one for Mom, Dad, your friends.. Spread the disease. They can't jail us all.
-- What you do today will cost you a day of your life.
It's not one judge - it was congress that passed the law that the judge is enforcing. Congress already stepped all over your rights - the judge is just making sure that what is deemed to be law is followed and enforced.
Judge J. Mendlink (no joke, folks. SML) waived the arguments, stating, that if PCM, doesn't want others to use their information, that they should not put it on internet for free. He also considered it doubtful, that the newspapers in question actually incurred damage.
Funnily enough, normally internet-savvy journalist Francisco van Jole, who has been on the internet about since the start of last September (which was the '93 one, as we all know. SML.), predicted the imminent death of content on the internet.
Anyone with time and language skill is invited to translate the actual article or articles, via kranten.com or directly from for instance de Volkskrant or de NRC, the best two national newspapers as far as I can tell, with preference to the latter. Both are actually published by PCM. Though only de Volkskrant probably has van Jole's actual words.
De Volkskrant also ran another story on "Ever more Merkins in Dutch ICT". Interesting, but I've got no time to tell ya about it.
Stefan (using my initials SML for editorial comments above).
It takes a lot of brains to enjoy satire, humor and wit-
The truth shall make you fret. (Ankh-Morpork tImes motto)
It seems to me that all this is heading towards a world where everything is illegal and the powerholders can choose to attack whoever they like because everyone is guilty. If linking to illegal material is illegal then nearly every web site is illegal so the MAN will be able to single any webmaster they want out for persecution.
These kinds of laws really bother me because they put too much discretion in the hands of the police/prosecuter If laws are more careful then much fewer people are guilty and only the deserving are prosected.
Regardless of how you feel about the legality of DeCSS itself, prohibiting linking to sites containing DeCSS is pretty much the same thing as prohibiting a movie about an elaborately planned murder. We allow movie makers to portray this every day, often in enough detail so that we now know how to do illegal things, or where to find illegal things.
I also find it funny that media outlets are scared... the majority of television and radio outlets, the source of the news for many people in the U.S. (where this case matters), are owned by the same people that own the motion picture studios... it's sort of funny. Check out Who Owns What at the Columbia Journalism Review site to see exactly how much media is controlled by a few large entities.
Sujal
politics, food, music, life: FatMixx
> more important than our use of computers for the free exchange of information?
Yes, he is.
The most depressing thing about the state of IP law and those who practise it is that they utterly fail to grok the fact that it's precisely the use of computers for the free exchange of information that's led to the generation of so much capital over the past 20 years.
With real freedom to innovate, you get real freedom and real innovation. With Freedom To Innovate(tm), you get DIVX(tm) and SDMI(tm).
The situation has become totally ridiculous. There's an old quote about how "private property" was invented the day an ape stuck a fence around a field, called it "his", and all the other apes believed him.
While we do live on a "small planet", with limited land resources, intellectual "property" is no such "thing". You can't try to apply the laws of the material world to the mental world. They two are different domains. They have different properties. They cannot be treated the same way.
Unlike a material object, an idea has no physical location. It transcends space and time. Ideas are a wonderful opportunity for people to give to the world in a manner that does not detract from themselves. If I give you my dinner, I may go hungry, but if I share my idea, we _both_ benefit (if it's a good one).
We are at a point where the powers that be would have us take "memory eraser" pills when we have finished watching a concert, so that we are not "stealing" memories of their IP --- (I submit this silly analogy as a homage to all the other silly analogies being spouted by highly paid, so called, "intelligent" individuals).
Unfortunately DVD is making it's way into the consumer mainstream.... seductively playing on the new entertainment tech appeal to the masses. But thanks to the discussions on /. I for one will at least be avoiding the stuff. Heck, I don't read enough fiction. Maybe I'll just read more books instead.
Re. the statement about companies protecting their "revenue stream": your services are no longer needed. Thanks, it's been great doing business with you, the music distributors (you know who you are), but I am not able to obtain music quite easily without your help. So long, and thanks for all the fish!
This ruling is issued by a Federal District Court (Southern District of New York). It has very little value as legal precedent (many of these cases don't even get published anymore, although this one probably will, especially when it gets appealed). It really only applies as binding "law" to the litigants before the court (MPAA and 2600, plus other named defendants), and possibly by extension to anyone else subject to jurisdiction in the S.D.N.Y. doing the same things (assuming the Court pays attention to its own rulings later on down the line). If somebody else in another jurisdiction upsets the MPAA, they have to bring another lawsuit in that jurisdiction; they can point to this case as "res judicata" (things decided already) but the judge is pretty free to ignore it, especially if the facts differ. Stuff like this happens all the time; different state & federal courts disagree, leading to "splits" in authority between different Circuits (the next level up from District court); often, the Supreme Court decides to weigh in, to make things uniform nationwide again.
My 2 cents: if this upsets you, try "civil disobedience" - post your own links to DeCSS and other "banned" stuff everywhere you can (that is, your own websites - no advocacy for crackers/defacers intended). Keep the suits and lawyers so busy, they lose sight of the bottom line and start losing $$$. Use massive, peaceful protest to help change the current system. Examples: Ghandi, MLK, and now Emmanuel Goldstein?
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
Below is a letter I've sent to all of my congressman. Please feel free to use as your own if you feel the same way I do:
Dear Congressperson,
I write to you this letter through actual tears of distress at the disheartening developments and outcomes of the Digital Millenium Copyright Act (DMCA). Never in my life have I see a single piece of legislation give so much power to corporations at the expense of consumer rights and individual liberties. Of all the amendments in our Bill Of Rights, one of them has for most stood out as paramount, and for good reason it is the First Amendment. Our founding fathers did not make it the 3rd, 6th or the 10th. In the most recent case, Judge Kaplan in the DeCSS vs. MPAA trial, ruled that not only was source code (which can be written on a T-shirt) not speech, but that even linking or directing to people to such code is also illegal!
I'm not sure what I am asking you do, only that if don't already understand the chilling implications of these trends, please do so at once. Since it was Congress who passed this draconian piece of legislation, it is Congress who must overturn it. I want to start seeing legislation that is pro-consumer first, and pro-corporation second. One that protects the liberties and freedoms of individuals against over-zealous corporate interests.
To anyone who knows anything about the use and programming of computers, source code is definitely speech. Computer networks are the fastest-growing medium of public and private expression; our rights and liberties, as we engage in commerce and in other forms of discourse via that medium are protected by instructions to computers. Source code is the means by which these instructions are expressed in ways that people can examine and understand.
On the Internet, there can be no genuine freedom of speech unless source code is a protected form of speech. This principle is attacked, however, by U.S. District Judge Lewis Kaplan in his ruling that, "society must be able to regulate the use and dissemination of code." The judge then enjoined Eric Corley, publisher of 2600 magazine, from assisting his readers from even linking to the code that unlocks DVD content. My head is spinning from the implications of all this. No longer is the act of a crime a crime, but discussing it or pointing to people who do is also now criminal. The current anti-piracy/pro-intellectual property laws are dangerously moving in that direction. No longer are the people doing the pirating liable, but any technology like Napster or Gnutella which makes it possible is also illegal. This same logic could just as easily be applied to the internet itself. It's equivalent to making cars illegal because they allow people to conduct bank robberies or kidnappings. Unless I am corrected, technology has never been the culprit, only the user of such technology is criminal. In a murder trial we don't hold the knife trial, only the user of it. But now with the help of statutes in the DMCA, people like the MPAA and RIAA are trying to outlaw any and all technology that can be used to facilitate piracy. If they get their way, we might as well say goodbye to the PC, the fax machine, the telephone, the internet, Napster, Gnutella, and just about any other new technology that doesn't give them complete control over all its content. This a chilling prospect indeed. Imagine everything we say, do and watch through media is tightly controlled, filtered and censored through power of consolidated corporate interests.
Dangerously, companies are already discussing plans to re-vamp the whole array of consumer computer products and internet protocols to do exactly this. Imagine buying your new computer with a label on it saying, "Do not open or tamper with under Penalty of Law". I don't know about you, but the thought of corporations forbidding individuals from producing and distributing media or building their own computers or running their own software should be completely repugnant to anyone with principles of a free society. To legally support the position that the common man is fit only for mindless consumption is a despicable point of view, and to forbid otherwise is a shocking development that speaks volumes about the perspective and motivation of modern corporations. But if the corporations do manage to create an entirely new information infrastructure, then the individual user will no longer be able to distribute their music or creative work online as they have up to now, as doing so would mean they'd be using a format easily copyable and cheaply distributed - which by definition would become outlawed if corporations get their way.
Now that duplication costs have fallen to zero thanks to the computer revolution, what you have here is nothing less than a corporate power grab attempting to create artificial scarcity where there is none, in a desperate attempt to maintain their previous monopoly of media distribution and revune streams.
Just imagine if the blacksmiths of days past were allowed to pass equivalent legislation prohibiting any technology which might circumvent their ability to make money; any transportation device not using horses now becomes illegal. It may have seemed a small sacrifice at the time to protect people's livelihood, but where would we be today without our modern transportation systems?
In the regards to the DeCSS case, the Supreme Court has already laid the foundation for reversal of this ruling, in Justice Stevens' majority opinion striking down the Communications Decency Act of 1996. That opinion described the discourse of the Internet as a "dynamic, multifaceted category of communication ... as diverse as
human thought," and included the vital statement that other cases involving other forms
of mass communication provide "no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium."
Given the Supreme Court's unambiguous statement, it is shocking to consider the precedent that Judge Kaplan proposes to create. If it is unlawful to publish the means of breaking DVD encryption, then isn't it also unlawful to publish a detailed critique of any other encryption algorithm that explains its vulnerabilities?
For that matter, wouldn't this ruling hamper any form of consumer activism that independently examines the ingredients, the design or the behavior of any product whose vendors demand "trade secret" status? Sounds awfully convenient to me.
Those who approve of Kaplan's ruling assert that it merely enforces the Digital Millennium Copyright Act of 1998; this assertion surely invites the Supreme Court's scrutiny of that law, since any U.S. copyright law must ultimately trace its authority back to language of the Constitution.
Article I, Section 8 merely authorizes Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Copyright law is not property law, despite the attempts of the Motion Picture Association of America and the Recording Industry Association of America to paint themselves as aggrieved property owners merely trying to protect what's theirs.
What's constitutional is what "promotes the progress" of creative expression. Increasingly, source code is the lingua franca of "science and the useful arts," and source code must therefore enjoy full protection against any law that abridges its freedom. This should also be extended to provide protection of technology creators to not be held liable for how some criminals decide to use it.
If you read this far, you have my deepest gratitude.
Most Respectfully,
Your name here.
www.enthea.org
Below is a letter I've sent to all of my congressman. Please feel free to use as your own if you feel the same way I do:
Dear Congressperson,
I write to you this letter through actual tears of distress at the disheartening developments and outcomes of the Digital Millenium Copyright Act (DMCA). Never in my life have I see a single piece of legislation give so much power to corporations at the expense of consumer rights and individual liberties. Of all the amendments in our Bill Of Rights, one of them has for most stood out as paramount, and for good reason it is the First Amendment. Our founding fathers did not make it the 3rd, 6th or the 10th. In the most recent case, Judge Kaplan in the DeCSS vs. MPAA trial, ruled that not only was source code (which can be written on a T-shirt) not speech, but that even linking or directing to people to such code is also illegal!
I'm not sure what I am asking you do, only that if don't already understand the chilling implications of these trends, please do so at once. Since it was Congress who passed this draconian piece of legislation, it is Congress who must overturn it. I want to start seeing legislation that is pro-consumer first, and pro-corporation second. One that protects the liberties and freedoms of individuals against over-zealous corporate interests.
To anyone who knows anything about the use and programming of computers, source code is definitely speech. Computer networks are the fastest-growing medium of public and private expression; our rights and liberties, as we engage in commerce and in other forms of discourse via that medium are protected by instructions to computers. Source code is the means by which these instructions are expressed in ways that people can examine and understand.
On the Internet, there can be no genuine freedom of speech unless source code is a protected form of speech. This principle is attacked, however, by U.S. District Judge Lewis Kaplan in his ruling that, "society must be able to regulate the use and dissemination of code." The judge then enjoined Eric Corley, publisher of 2600 magazine, from assisting his readers from even linking to the code that unlocks DVD content. My head is spinning from the implications of all this. No longer is the act of a crime a crime, but discussing it or pointing to people who do is also now criminal. The current anti-piracy/pro-intellectual property laws are dangerously moving in that direction. No longer are the people doing the pirating liable, but any technology like Napster or Gnutella which makes it possible is also illegal. This same logic could just as easily be applied to the internet itself. It's equivalent to making cars illegal because they allow people to conduct bank robberies or kidnappings. Unless I am corrected, technology has never been the culprit, only the user of such technology is criminal. In a murder trial we don't hold the knife trial, only the user of it. But now with the help of statutes in the DMCA, people like the MPAA and RIAA are trying to outlaw any and all technology that can be used to facilitate piracy. If they get their way, we might as well say goodbye to the PC, the fax machine, the telephone, the internet, Napster, Gnutella, and just about any other new technology that doesn't give them complete control over all its content. This a chilling prospect indeed. Imagine everything we say, do and watch through media is tightly controlled, filtered and censored through power of consolidated corporate interests.
Dangerously, companies are already discussing plans to re-vamp the whole array of consumer computer products and internet protocols to do exactly this. Imagine buying your new computer with a label on it saying, "Do not open or tamper with under Penalty of Law". I don't know about you, but the thought of corporations forbidding individuals from producing and distributing media or building their own computers or running their own software should be completely repugnant to anyone with principles of a free society. To legally support the position that the common man is fit only for mindless consumption is a despicable point of view, and to forbid otherwise is a shocking development that speaks volumes about the perspective and motivation of modern corporations. But if the corporations do manage to create an entirely new information infrastructure, then the individual user will no longer be able to distribute their music or creative work online as they have up to now, as doing so would mean they'd be using a format easily copyable and cheaply distributed - which by definition would become outlawed if corporations get their way.
Now that duplication costs have fallen to zero thanks to the computer revolution, what you have here is nothing less than a corporate power grab attempting to create artificial scarcity where there is none, in a desperate attempt to maintain their previous monopoly of media distribution and revune streams.
Just imagine if the blacksmiths of days past were allowed to pass equivalent legislation prohibiting any technology which might circumvent their ability to make money; any transportation device not using horses now becomes illegal. It may have seemed a small sacrifice at the time to protect people's livelihood, but where would we be today without our modern transportation systems?
In the regards to the DeCSS case, the Supreme Court has already laid the foundation for reversal of this ruling, in Justice Stevens' majority opinion striking down the Communications Decency Act of 1996. That opinion described the discourse of the Internet as a "dynamic, multifaceted category of communication ... as diverse as
human thought," and included the vital statement that other cases involving other forms
of mass communication provide "no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium."
Given the Supreme Court's unambiguous statement, it is shocking to consider the precedent that Judge Kaplan proposes to create. If it is unlawful to publish the means of breaking DVD encryption, then isn't it also unlawful to publish a detailed critique of any other encryption algorithm that explains its vulnerabilities?
For that matter, wouldn't this ruling hamper any form of consumer activism that independently examines the ingredients, the design or the behavior of any product whose vendors demand "trade secret" status? Sounds awfully convenient to me.
Those who approve of Kaplan's ruling assert that it merely enforces the Digital Millennium Copyright Act of 1998; this assertion surely invites the Supreme Court's scrutiny of that law, since any U.S. copyright law must ultimately trace its authority back to language of the Constitution.
Article I, Section 8 merely authorizes Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Copyright law is not property law, despite the attempts of the Motion Picture Association of America and the Recording Industry Association of America to paint themselves as aggrieved property owners merely trying to protect what's theirs.
What's constitutional is what "promotes the progress" of creative expression. Increasingly, source code is the lingua franca of "science and the useful arts," and source code must therefore enjoy full protection against any law that abridges its freedom. This should also be extended to provide protection of technology creators to not be held liable for how some criminals decide to use it.
If you read this far, you have my deepest gratitude.
Most Respectfully,
Your name here.
www.enthea.org
Remember: Citizens have rights. Consumers have only wallets.
The Mongrel Dogs Who Teach
Much Longer than that! The U.S. is a common law country and like in other common law countries (e.g., Great Brittan) our legal system is filled with two types of "law." These are common law and statutory law. Statutory law is given by the legelature and common law is given my the judicial system. If you've been following this case at all the DMCA is statutory while Summers vs. Tice is common law. Most of our legal system, including contract and tort law, is derived from English Common Law. The Constitution not only allows but requires this.
As for your bullet points...
Nobdy would ever have any clue as to whether they were breaking a law unless judges were able to interpret laws. If you don't like a judge's interpretation you can appeal it. This is why, in a criminal trial, we have a judge to interpret the law and a jury to interpret the facts. The Constitution says "No bill of attainder or ex post facto Law shall be passed."(I.9.) A law is not an ex post facto law just because the judge decides whether or not you violated it after you violated it.
Well some judges are elected but you're right that for the most part higher up state and federal judges are not. I think most if not all judges would argue that their decisions are anything but arbitrary. You can appeal a judges decision so that these important legal decisions are not made by a "single" judge. If you don't like how judges are apointed then elect someone president who will put in judges that you like or write your congress(wo)man and say that you want an ammendment to the constitution passed which allows us to elect all judges. However I don't see the current system as being that bad. If you don't like that the court can make interpretive rulings like Mirranda or that a state can't succeed to escape a federal excise tax then you are entitled to your opinions.
That is exactly why you can appeal. Once the surpreme court rules on something it applies everywhere in the U.S.
and on Napster:
"The lawsuits against Napster may be aimed at piracy, but they could also stomp out small record labels and unsigned artists who want their music to float freely through the world of Napster. But the big labels want to shut down the entire service. If the current laws are not strong enough, they want new laws that will stop people from making some kinds of open technology. They imagine a world where technology will control and limit people instead of liberating them."
Go NYT!
PS. I just submitted this as a story, and it's been reclassified as "YRO" in the submissions queueue, so it might hit the front page soon.