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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?
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.)
s that regardless of the purpose that DeCSS was created for, it *did* bypass the DVD access controls.
That ignores (as the judge did) the legitimate purpose of DeCSS. DMCA does make exception for things which have a legitimate purpose.
Otherwise, they'll have to ban soldering irons, debuggers, and text books on home electronics and programming (especially embedded devices)
This is one of the things that troubles me about the DMCA. Well, that and everything else about it. By saying that it's illegal to try to crack encryption--even lousy encryption--they basically make everything potentially encryption. Microsoft gets annoyed at StarOffice being compatible, and tired of changing its format each release? No problem. The Microsoft Word document format is access-control, and anyone caught trying to read it is in violation of the DMCA. Neener neener.
The real Seqram has Slashdot ID... Oh, who cares, who'd want to impersonate me anyway?
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.
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-- Openlaw: Fighting for fair use and the public domain
You've been had by the MPAA's 'logic' if you can't see this. It doesn't matter if it was a good encryption scheme or it was a feeble one. Once the scheme was known it was broken, gone, and voided. MPAA wants to rewrite the history of that event in a very Orwellian fashion, by making it illegal to know about it. Apply this to a larger context, and it becomes illegal to publicize other feeble encryption schemes. This makes sites like Bugtraq illegal, and the l0pht, instead of providing a service by embarrasing Microsoft, is now illegaly reverse-engineering their encryption scheme.
Which puts people like me right behind the eight-ball. It's my job to seek out those kinds of vulernabilities and protect my very real production system against them. But under the DMCA the act of seeking out vulnerabilities is now 'sneaky' and 'hackerlike' behavior. Regardless of whether it's to keep ahead of genuine theives or become one myself, the ruling that Kaplan has laid down doesn't differentiate. The MPAA has people snowed on this piracy thing. The fundamental truth is, it is not the problem of the law, the justice system, or the community at large that the MPAA chose such a childish, feeble scheme to protect their works. It's out in the open now and it is not my responsibility or yours or anyone else's to give up our constitutional rights to talk about what we choose to talk about or think about what we choose to think about just to protect their lame-ass scheme. They are left with exactly the tools that they've always had to defend against piracy, which are 1) punishing pirates when they're caught. And 2) punishing pirates when they're caught. Prevention of the means of piracy should not be the public's problem. But the DMCA makes it the public's problem, and in the process stomps on our right to THINK about piracy. It's the beginning of thought control and it's absolutely terrifying.
What really cracks me up is that if they'd just kept their mouths shut they would be having no problems. I predict very confidently that if the prices of DVD's remain at the astonishingly low rates they are now, piracy of DVD's will remain almost nonexistent no matter how easy they become to pirate. For the same reason that videotape piracy is pretty much a thing of the past; it's cheap to buy a videotape and you can be assured that you're getting a good quality copy. When videotapes were $80, they weren't worth buying, but having a friend run off a copy was worth the effort and the relatively minor risk. If DVD remains in the ~$20 range, they will never have a major problem with DVD piracy. But I imagine that just like the RIAA the MPAA is planning to jack prices up on this new format once it's taken over the market. And in order to secure their market, they think, they're doing their level best to make piracy impossible. Except that they don't seem to be very smart about it. I predict that if much more of this goes on the DVD will go exactly where DIVX went -- nowhere. The DVD section in any movie rental store I see is still a small percentage, less than 10%, usually, of the stock, and the selection is truly awful, most of the time. If the stink of what's happening in Jester Kaplan's court gets into the public's face people will stay away in droves from the new formats, and this incredible racket that the MPAA has planned for themselves will evaporate like so much vague speculation. But that's just my hope.