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Similarities Between DeCSS And The Connectix VGS Case?
bahamat dropped this interesting tidbit into the inbox: "Has anyone compared the DeCSS case to the Connectix VGS case? The facts surrounding both are very similar: A company produces content on disks and provides an expensive player on which to view the content; then another company reverse engineers the player to produce a software version for very cheap. The big company sues the little company. In the case of Sony vs Connectix, Connectix won, the court ruling was that Sony can't bar someone else from producing compatible player. It seems to me that this case has already set a precedent for the DeCSS case. Really, what's so different about the two? Has the DeCSS legal team approached the case from this way?" One thing to note: the win in the VGS case is on patent grounds, the two copyright claims in the suit are still undecided. It was copyright law, namely the DMCA, which the decision on the DeCSS case is based. Still, are there any similarities between the two that may make a legal difference to the 2600 case when it is appealed?
Wasn't a big part of the DeCSS legal strategy the Sony/Connectix case... until Connectix won? Then the MPAA kinda let it fall by the wayside.... I may be wrong for all I know, but I think I'm right.
Anyway, as a Mac User, I use CVGS to play on my iBook. It ain't a tv, but it plays real nice, I have all the memory cards I want, plus screenshots of cool game sequences make great backgrounds. All Connectix has to do now is make a version for the DVD Macs for the PlayStation 2. I think that'll work out real nice....
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The DMCA applies to the DeCSS case because there was encryption envolved ("access control"). Nothing of the sort in the Sony case.
It didn't have to be good encryption, they just had to try.
Lame, but true.
sig fault
You can sing DeCSS.
You cannot sing the Virtual Game Station.
...the reason it won't really apply is because it was a patent dispute. Not to be redundant, but as you said, the copyright suits are undecided and those are what would carry the most weight in the 2600 case.
A case that I think *does* apply to this is the Sega v. Accolade case (hosted on www.eff.org in their case law section, so they're already aware of it, I'm not sure if the defense brought it up however..). In that case, Accolade reverse engineered the Sega Genesis to create compatible games for the console. After releasing some titles for the system, Sega made a change to their hardware to display the Sega logo everytime the system booted (or rather, whenever code from the cartridge issued a specific, BUT REQUIRED, initialization instruction).
The similarities here are that Accolade was reverse engineering the console for compatibilities sake. Really, the case of DeCSS is the same-- except in this case, the end result desired was a piece of code/software which could decode and play the content. (Although it could go both ways, couldn't it? Now that CSS's algorithm is known, you could (if you desired anyway) encode your own content.
But back to the Connectix case; I admit, I wish it could be applied, but for the reasons you stated, I just don't think it can. Maybe the appeals judge will be more inviting of case law and the idea that the motion picture industry is basically trying to create their own monopoly. (And HOPEFULLY the appeals judge will be more mindful of the 1st amendment!)
All I know about Bush is I had a good job when Clinton was president.
The defense did try to use that case, along with the betamax case and the Rio case. Unfortunately, the judge felt that all those cases didn't apply because the DMCA had changed the law, and this case was on whether or not DeCSS violated the DMCA.
Has anybody looked at how intertwined the music industry is with the "traditional" news media?
Emulators may make it possible to play pirated game CDs (hasn't Bleem! been hacked for that?), but unlike DeCSS, they don't make it any easier to copy and distribute the things to begin with. (Because they're already in realistically stored/transmitted sizes). Not that DeCSS is NEEDED for movie piracy, but it has helped some people do it.
Speaking of internet piracy on the net, why the hell are the MPAA so up in arms about DeCSS because of the quality it allows (good rips more easily), when it hasn't been any worse than bootlegs taken in theaters with video cameras? Jeez, been on IRC, lately? Hardly anyone bothering with DVD rips, compared to all the movie-theater bootlegs. The quality doesn't seem to bother people, because the experience is already pretty degraded watching it on a computer screen. (So long as it isn't absolutely terrible)
Really, has DeCSS made a practical difference to internet movie pirates (like me?)
One thing to note: the win in the VGS case is on patent grounds, the two copyright claims in the suit are still undecided. It was copyright law, namely the DMCA, which the decision on the DeCSS case is based.
Actually, from the article:Sony brought suit to suspend sale of the product claiming copyright infringement and tarnishment of the PlayStation name and other marks. After the Ninth Circuit Court of Appeal rejected Sony's claims, Sony subsequently alleged that Connectix infringed eleven of its patents, seems like Sony lost 7 of their 9 copyright infringement suits, and afterwards they withdrew their patent infringement suits. That's not the same as they losing their case.
So, to clarify things a bit, I think this was the way things went (feel free to correct me if I'm mistaken!):
- Sony launched 9 copyright infringement suits.
- Court of Appeal rejected 7 claims.
- Sony then started 11 patent infringement suits.
- Just before the Court of Appeal decided wether to dismiss Sony's case, Sony voluntarily dismissed their case.
Let's hope Sony got wise and saw the monetary logic on getting more consumers to play their games (in their PCs), and while they would not make mroe money selling PlayStations, they'd probably recover by the increase in PlayStation games.
*Sigh* And all I've got is just a lousy Nintendo...but hey, I've got Unreal Tournament in my PC.
Tongue-tied and twisted, just an earth-bound misfit, I
Learning to fly, Pink Floyd.
Yeah, the main difference is the DeCSS case's reliance on the DMCA's encryption and circumvention clauses.
;-)
First off, PlayStation games were formatted bizarrely, but noone ever argued that this was "encryption", nor that it was covered bythe DMCA's "effective access control" wording. I'm not sure if this is fortunate or not... it could be that had Sony gone this direction, they could have had as much success as DeCSS, but I think that's unlikely.
One of the reasons Sony would have a tough time fighting under the DMCA is because nothing was being copied by Connectix, or its software. They wrote an emulator, plain and simple. The problem with DeCSS, not that people ARE using it to copy, but that the prosecution has managed to convince the courts that it is a tool for copying.
There's a fine line there, but it matters a lot. After all, the "C" in DMCA stands for copyright. Sony wasn't worried about copying (publicly), only about emulation. The MPAA is (right or wrong) crying about copyright, so, I imagine the two are legally unrelated.
As usual, IANAL.
Connectix made a lot of headway in court when they were able to show that their emulator was developed in a 'clean room' environment - with only the Playstation APIs to implement to. Sony tried to argue that their APIs were protected by copyright and ended up losing. (To me, thats kindof like GM can't read Ford's drivers manual)
Now, i am certainly not an expert on DeCSS development (and someone please fill in the details or correct me where wrong), but my impression is they obtained certain 'keys' from officially branded DVD hardware/software decoders. And in turn, use those keys to decode/emulate a DVD player. If so, then DeCSS is not a 'clean room' environment, per se. And MPAA could argue that this key was stolen IP.
Anyways, I see this is an important difference between the two cases.
Tom
Really, what's so different about the two?
In the Connectix case, the judge had no connection to either party.
In the DeCSS case, the judge was deciding the legality and enforcability of a player market control scheme that his own law firm -- his colleagues -- personally designed for the MPAA.
What a fortunate coincidence for the MPAA!
It seems to me that if it takes a judge 91 pages to make the argument that he should not recuse himself from a case, something is wrong.
is that regardless of the purpose that DeCSS was created for, it *did* bypass the DVD access controls. Due to that fact alone, it was in violation of the DMCA. The next trial will not question the legality of DeCSS, but rather the constitutionality of the DMCA...and its THAT case we should be atching intently, as it will change the way things work with copyrights in the future
Before and after DMCA?
Instead this why the lawsuit is in California instead of someplace else?
Perhaps I should look some of this stuff up. But instead I'll let people cuss at me if I'm wrong.
While it's fairly obvious IMHO that code is a form of expression and should be covered under the first ammendment, the judge says code is more functional than expressive. Has anyone thought about the Perl Poetry contest? Seems to me that stuff is about as expressive as you can get, as much as regular poetry or any other form of expression. Has the DeCSS thought about this argument?
Erik
DMCA's biggest problem is its inherently split personality. In 1201(a)(2), it prohibits the manufacture or import of devices primarily intended to circumvent "effective" copyright measures. But, in 1201(c)(1), it states, "Nothing [in section 1201] shall affect rights...including fair use, under this title." That's right, boys and girls - you have the right to copy that DVD, it's just illegal to make a device to do it!
So, as usual, this is just folks who haven't actually read the law running off on tangents. Yes, it's a good analogy. But the law very clearly prohibits some things (building a device to defeat an "effective" copyright control system) and clearly doesn't prohibit others (building an emulator). Read the law before you post.
Oh yeah, and for all of you thinking, "Well, if DeCSS can break it, by definition, it isn't effective," the law has an answer to that, in 1201(b)(2)(B): An effective measure is one that "in the ordinary course of its operation, prevents...the excercise of a right of a copyright owner." DeCSS isn't in the "ordinary course of its operation," therefore, it doesn't make the copyright control ineffective! In fact, there is some argument that, if I simply put a bit on my content (much like the copyright bit in the MP3 standard) that said, "Don't copy me," and all the players in the market enforced that bit, making a player that ignored it would be prohibited by DMCA!
There's not any clever legal arguments to get out from under this. Either the Supreme Court strikes it down (which it conceivably could do simply for being so internally inconsistent in stating that fair use is OK but you can't build a device to enable fair use, or perhaps on first ammendment grounds), or We The People get Congress to revoke the law. Us against Disney, Microsoft, the MPAA and the RIAA...Hmmm. I know who's the favorite on this one...
(DMCA information taken from The EFF. Large amounts of legal verbage have been removed from the quotes above in order to make them actually readable.)
Considering that Connectix lost all ability to provide VGS when the GS was hot, I would say that Connectix won the battle but lost the war.
This is thought control on the source level. Essentially, DeCSS is a war cry against this.
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
Connectix was found to have engaged in infringing copying but won on the defense of fair use. Its temporary copies were necessary to gain access to the unprotectable functional elements of the Playstation BIOS, and its resulting emulator was a transformative use of the copy. Judge Kaplan told the defendants in the DeCSS case that fair use was not a defense to circumvention of access control devices. That's still a major point of contention, of course.
But, it's not over yet.
We need to draw a closer parallel between the cases, to argue that the DMCA did not so change the landscape and thus that the reverse engineering and interoperability endorsed by the 9th Circuit must still be permitted. There's lots of great language in the Connectix opinion that claims of copyright infringement can't be used to cut off access to unprotected ideas and functional elements. Can we extend that logic to say that even "access controls" endorsed by the DMCA can't be used to cut off that same unprotected information or fair use of the underlying content? Putting a ROT13 on a work shouldn't cut off fair use.
Join the fight at Openlaw!
-- Openlaw: Fighting for fair use and the public domain
I could be mistaken but i thought that Sony dropped the VGS suit when it became clear that they would lose. It was speculated that they dropped the suit specifically so that it would not set a precedent against them in the future.
Can someone verify this? I could be wrong and i'm at work now so can't spend time looking it up.
What about the DVD players that don't pay attention to the region code that were produced by Sony and the like?
DeCSS adds an additional feature which is that the results from the software is a preferable format for any user choosen manipulation of the data. I key aspect of the DeCSS trial was the fact that CSS data is not approbate for recompressing via DivX. Since being able to achieve further compression of the DVD content was note an intended feature of the DVD author, the DeCSS software is considered to provide an unexpected and undesired additional feature.
However, with the rate at which technoligy is going (60+ GB hard drives, Gigabit ether, etc.) it seems questionable as to how long remanipulation is going to be desirable for transfer. Probably withen the next 24 to 36 months their will be a reasonable size number of people with the equipement to easily do byte-for-byte duplication such that DeCSS is no longer desired as part of the pirating process. Please keep in mind that while it is presently not human noticable that the "Divx'd" DVD copies are degraded from the orginial. Once technology catches up with the the size of DVD images, why bother producing a degraded copy? At the that point in time that technology provides for making identical copies preferable the DeCSS will cease to be a popular tool for copyright infingment and will only have a popularized purpose of accomplishing playback. Hence, I believe the present "win" against DeCSS has only short term benfits for DVD publishers and in that regard was probably fairly pointless.
DMCA. There's the anti-circumvention clause in that stupid law which your legislators have been dumb enough to pass. Since DVD has an anti-circumvention technology: CSS, however lame-ass and weak it is, never mind that anyone who hasn't fallen out of a tree could break it in five minutes with pencil and paper, the law's designed to protect it. Ain't it silly? It's creating a legal solution to what is essentially a technological problem. In this case, the MPAA's problem is that technology has passed them by; the notions of copyright it depends on are obsolete, so they need to change its business models to adapt to the Internet world, and abandon their obsolete notions of "intellectual property" forever. Their notions of copyright were dying around 1991 when Tim Berners Lee and Linus Torvalds began their work. By now, almost ten years later, it's not only dead, but stinking to high heaven. They should get it in their heads to bury that corpse before it creates more virulent infections such as the DMCA. It won't kill them either, just force them to make less money than they're accustomed to making. "Whether you like it or not, History is on our side. We will bury you." --Nikita Khruschev "You had your time. The future is our world. The future is our time." --Agent Smith
Qu'on me donne six lignes écrites de la main du plus honnête homme, j'y trouverai de quoi le faire pendre.
So, here's my take.
2600 will probably loose - they have been painted as evil hackers in court, the copyright-owners are on a bit of a roll right now, and it's an election year.
What strikes me is that these huge organisations - both the "content creators" like Disney, and the software shops like Microsoft, seem to forget where their ideas come from. Never read a good book, watched a good film, heard a good song, used a good program created by a faceless organisation - to survive, these Intelectual Property-based organisations need one thing more than anything else, and it is TALENT.
The DMCA, the DeCSS and Napster cases - they all serve to turn those talented folks who could be making them rich into sworn enemies. Which self-respecting geek would go to work on a new form of encryption for DVD players ? Which teenage band who have been chucked of Napster is going to sign with a major label ? (well, maybe if the money was right...)
Somewhere in Hollywood, there is high-priced consultant scaring the studios, saying "look at Napster ! In 3 years time, everyone will have broadband access to the net, and the same will happen to your DVD content ! You will have to give up all that you hold dear !". The knee-jerk reaction is instantaneous.
Someone, somewhere is going to figure out a way to get rich from content in the new digital age, where information can not be protected by encryption and still be publicly available and run on cheap hardware.
I bet it won't be the existing powers.
Won't be me either, if I keep wasting my time posting to Slashdot....
It's all very well in practice, but it will never work in theory.
What seriously pissed me off about the CSS system is:
1. Region coding. Why? Because I want to play the films I own, if I moved across regions, if they weren't released in my region, or at least much slower, or I could simply get them cheaper in another region. I'd call it discrimination, but I don't think the UN would hear me out.
2. Force feeding. I know of at least one DVD which has *required* parts, and I'm not talking about the legal section, it's commercials/trailers. Even on a video player you can skip what you don't want.
3. Playability. I don't understand the problem with releasing a software-only binary-only self-encrypting Linux player, like those on windows. It's not like the MPAA didn't have a market, or couldn't afford it. Not that I use it (Win2k actually is kinda ok if getting it to the same price as Linux), but I *know* they could have done it had they wanted. But I suppose they'd rather have you go buy a stand-alone player....
Live today, because you never know what tomorrow brings
you encrypted an original work of authorship, say a CSS-player, which infringes no copyright, but does in fact facilitate circumvention of the anti-copying technology of another?
What if a prospective plaintiff "broke" the encryption thereby and obtained evidence of for its own DMCA case?
Would not the plaintiff also have broken the law thereby?
Say the plaintiff seeks injunctive relief under DMCA -- in so doing, would a defendant be coming to equity with unclean hands, precluding an injunction?
In an analogous case under copyright law, where a plaintiff makes copies of a derivative work to obtain evidence of an infringement, the Court overlooks the incidental infringement by the plaintiff as a form of fair use.
But that is the fundamental difficulty of the DMCA -- it doesn't provide for fair use. What is good for the goose -- is it also good for the gander?
This is certainly not legal advice -- I haven't any thoughts one way or the other if this approach could work. But I'm wondering if it points to holes in fundamental DMCA policies. In particular, if there is no fair use as a defense for one side, how can the court rationalize a judge-made defense for the other?
My point is this -- DMCA gives far more than "additional protection" for copyrightable content -- it also permits exclusive rights to the ability to manufacture DVD players, giving patent-like protection to a technology that is not, in fact, patentable. In addition to everything else, this cuts at the heart of more fundamental IP policies. Fair use is necessary to make IP Copyright law tenable. Likewise, the scope of patent law was very clearly defined to make patent law tenable.
Now we have a new body of IP law, putative circumvention technologies, which are not limited by scope or by time or inventorship.
Bleah!
Well yeah that is the concept behind zoning.
:)
The problem is that it doesn't work. I would reckon about 60% of dvd players sold in the UK are either zoneless or have easy hacks to make them so. Some will even resample NTSC dvds to give proper PAL output.
Films in the UK sometimes take a VERY VERY long time to get out. I'm pretty sure I saw EdTV on cabletv in canda over 6 months before it's uk theatre release (that was only 3 or 4 months ago).
The zoning system allows studios to release to a sample audience (typically the us and canada) and if the film fails then they haven't wasted the expense of promoting it globally.
The problem is that UK DVDs are generally of quite poor standards. It is not unusual to see mpeg encoding defects in them. They frequently lack the extended features found in US discs. They often lack multilingual soundtracks. It is not at all easy to buy a disc in the uk with a DTS encoded soundtrack for high end 5.1 speaker systems.
I prefer US DVDs for these reasons alone. Add to that the fact that they are typically released a few months earlier and cost quite a bit less and you can see the problems.
Perhaps the worst UK dvd I came across was that of the film 'Human Traffic'. I thought they had come up with some ultra cunning way of defeating DeCSS only to find that the disc wasn't even CSS'd in the first place
Interestly enough i'm not sure if that film was ever released in the USA since it came from a uk studio (afaik) and was banned in several other countries because of recreational drug use in it.
The MPAA dont want to adapt. They dont want to face a world where they have to do a simultaneous worldwide launch to films. They dont want the profit loss they would have by selling dvds at US prices the world over. Just like the RIAA dont want a world where artist dont need to be signed to make money.
What I fail to see though, as other users have commented, is what a US judgement would do to UK consumers. Perhaps it might set a precedent but we dont have a DCMA. We do however have a right to disassemble software, and also to free speech.
Why dont the UK arm of 2600 take over decss distribution?
Then again they manage to arrest johansen in norway... bastards.
They plaintiffs say that it applies to 2600 because of the "traffic" clause -- 2600 trafficking in a device to cirvumvent. The hyperlinks were prohibited because Kaplan did not have sufficient mental fortitude to realize what the consequences would be if he ruled that linking is trafficking.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
a technological measure that effectively controls access to a work [...] "effectively" might be interpreted in such a way that rot13, etc. would be interpreted out of the picture
There seems to be an even deeper ambiguity than some unknown criterion for how strong the protection has to be. Does "effectively controls access" mean that it is an effective means of controlling access, or just that its effect is to control access?
If it's the former, then there are the questions the rest of you have been talking about, namely, "How 'effective' does it have to be?" -- and, strictly speaking, as soon as it has been cracked, doesn't it by definition cease to be "effective"?
But if it's the latter, which seems to me to make more sense semantically, "effectively" doesn't mean that it is actually effective, but only that that is what its effect is, i.e., that that is what it is intended to do. The phrase simply refers to any copy-protection or access-control mechanism (the equivocation between copy-protection and access-control, by the way, is an even bigger problem, since that's the part that ignores fair use). So, yes, I guess rot13 (or XOR, for binary data) would qualify, since simply applying it to a standard file format would cause the files to appear unreadable to a standard application and a naive user.
For a similar example, have you ever seen a multimedia CD-ROM on which the media files were in a folder with a "hidden" flag set, so it wouldn't appear on the desktop? To get at the files, you have to copy the entire disk to your hard drive (where the directories are writable), then use a low-level filesystem editor to unset the flag. Now I think that would count as "effectively" controlling access, since to a naive user, or a knowledgable but unmotivated one, its effect is to make it so the content can only be accessed through the accompanying application, even though it is trivial for a knowledgable and determined user to get around it. I don't think that this would make low-level filesystem editors illegal ( at least I hope not ) because this is clearly not their primary function, but perhaps public posting of the technique would be, (uh-oh!) since it makes it possible for people who already have the necessary tools but don't know how to do it. This could be another interesting case, since the circumvention does not require any specific tools, but simply a bit of knowledge.
David Gould
David Gould
main(i){putchar(340056100>>(i-1)*5&31|!!(i<6)<< 6)&&main(++i);}
DeCSS SHOULD be OK under DMCA since it is used to view legitimatly purchased DVDs (an allowable thing)
Sorry, not allowable. Viewing is, of course, a non-infringing use, but using DeCSS, even for that, still involves "circumventing a technological measure that effectively controls access to a work", so it's still illegal under DMCA. The real problem is this equivocation between "copy protection" and "access control", since that is where the notion of "fair use" gets forgotten. Even worse, it can cover uses for which you would not even have needed to invoke "fair use" (such as viewing), if the publisher adds a more restrictive access control. This seems to be where the DMCA's constitutionality really needs to be challenged.
David Gould
David Gould
main(i){putchar(340056100>>(i-1)*5&31|!!(i<6)<< 6)&&main(++i);}