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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?
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?
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
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.)
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
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.
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!