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Kaplan on DeCSS, DMCA, Hackers, and More
AltGrendel writes "Wired has a story about Judge Kaplan of DVD Piracy trials fame. He has an interesting view of hackers, to say the least." Doesn't say really anything we haven't heard elsewhere, but it does make a few interesting points. He's a smart guy, no doubt about it. I just wish he wasn't wrong.
More particularly, I'm not aware that there are any errors in Kaplan's opinion which arise from a misunderstanding of the technology at issue. (I don't count errors that are irrelevant to the point at issue, statements that constitute errors only if tendentiously read, or statements that constitute errors because the statement is not true in a insignificantly small number of instances.) If I'm wrong, correct me.
so if he's not best suited to deal with cases like this why is he so certin that he made the right decision?
Because the MPAA told him so, silly. How else?
This sig is false.
Kaplan was referring to the DCMA, not the lawsuit of which he was the judge. Judges help decide whether someone has broken a law. It is not their place to decide if a law is a good or bad one. That was his point.
Kaplan raises an interesting point: Congresscritters are so unbelievably far removed from being lawmakers that they rely on interest groups to write legislation for them. It ends up leaving all sorts of interesting Easter Eggs in the legislative vagaries. We are then left with what happens countless times these days: judges legislate from the bench, rather than Congress [or state and local government] writing sound, well-formed legislation.
Consider the current problems in Florida. The laws are contradictory--no one has been able to say, "This is what we will do, because this is the law says." Conversely, everyone is able to claim a small slice of legality for their position, throwing it into court.
This is nothing new, of course, but we can and should demand more thoughtful consideration of legislation from our Congresscritters. I dare say many of them don't truly study--or have their staff study--the full implications of their legislation. While it is often the case that well-meaning legislation has unintended consequences--I've been bitten in the ass myself on that with stuff locally--it is readily apparent that no one, other than those who wrote the DCMA, really considered the scope of the legislation.
And they say it's not important to vote. *snort*
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-- Geof F. Morris
He's a smart guy, no doubt about it. I just wish he wasn't wrong.
He may me smart, for someone trained in law, but the average slashdotter has better reasoning skills (or integrity).
He practically called Jon Johansen a liar [1], claiming that he wrote DeCSS to pirate DVDs, and that since it was a tool of piracy, the reverse engineering provisions of the DMCA do not provide a defense, regardless of the fact that there are legitimate uses for such a tool. [2]
And the whole thing with that disease analogy[3], what the fuck was he smoking? Why couldn't he just liken it to a military "containment" policy, which is basically what he was saying: in order to protect society's (er, the studio's) interests, we must smack down these pirates and their programs where ever they surface, like the dirty little subversives they are. But I guess that wouldn't be politik, with the first amendment and all.
Kaplan may be trying to look like the impartial nice guy, be he'll always be a big fucking wanker because of this ruling. Remember, Malda, behind his words are men with the guns ready to take everything away from you because you want to watch a fucking movie on a piece of equipment not sactioned by the CCA.
[1] Universal vs. Reimerdes [pdf], p.35
[2] p.37
[3] p.61
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Bush's assertion: there ought to be limits to freedom
The printing press, broadcast media, and now the Internet have all had a major effect on the politics of their day. New forms of communication, at their very heart, are strongly tied to politics. Why do you think the first ammendment exists?
Need a Python, C++, Unix, Linux develop
You are!
But I'm enough of an idealist that I consider a judge who fits the definition you quoted, to be unfit for office.
If the case is appealed to the Supreme Court, Kaplan confidently predicts his decision will be upheld: "The Supreme Court has repeatedly rejected absolutist views of the First Amendment," he said.
absolutism n. the acceptance of or belief in absolute principles in political, philosophical, ethical, or theological matters. absolutist n. & adj.
So you Americans have rights, but only 95% of the time. And it is not in your rights to decide which 5% of the time you don't have rights.
IOW, the powers-that-be reserve the right to screw you, every so often.
If they actually decided that, it would make perfect sense to me.
On Windows,there are ways to play DVDs without cracking the encryption. On Linux, there are none.
Therefore, DeCSS has a legitamite use under Linux but not under Windows.
Somehow, I don't think the judges will see it the same way.
Glückwünsche, haben Sie Slashdot ermordet, indem Sie zum korporativen Druck beugten und Subskriptionen einlei
Mr. Kaplan, I award you one troll moderation.
What's taken you so long? The rest of us took one look at the original ruling and did exactly the same thing. ;-)
-RickHunter
The difference between Respectable Citizens and Lawless Micreants in the eyes of The Law is corporate backing. If you do something clever on your own, some corporation will sue you over it and you get to be a Lawless Micreant and have your work suppressed. If you do something clever in the employment of a corporation, the corporation gets ownership of it, takes out a patent on it and defends it agains Lawless Micreants.
The Green Party is the beginning of the revolt against corporations. As corporations continue to harass citizens, this movement will pick up steam. I'm afraid that the revolt against corporate power, when it comes, will destroy a corporation's ability to do good things as well as bad things. Unfortunately, I don't think that the corporations of America can moderate their behavior enough to avoid thourghly pissing off the People and bringing around this state of affairs.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
It seems clear to me, contrary to Kaplan's assertions, that his ruling will not be upheld, unless higher courts radically change their attitudes to free speech.
The first amendment right to free speech has already been applied to crypto source code, in a case which denied the federal government the ability to restrict speech in the form of computer code. The protection applied to computer code as free expression has been found sufficient to override laws regarding national security. Surely the national interest is more important than specific commercial interests, such as those of the MPAA and its members, in which case overriding the MPAA's interest in this case should have been a non-issue.
Kaplan also referenced the Pacifica ruling which restricts content transmitted over public airwaves; but again, communications on the Internet have already been held to the highest standard of freedom of expression by other circuit appeal courts, including the panel which declawed the CDA, so Kaplan's choice of precedent is highly questionable. By Kaplan's argument, swearing on the Internet could conceivably be banned, and according to him, to think otherwise would be an "absolutist view of the First Amendment"!!!
So Kaplan is simply picking and choosing inappropriate precedents (e.g. re public airwaves) to bolster his pro-industry prejudice, and ignoring more recent and relevant precedent (albeit in different circuits) which contradict his position.
Perhaps the way in which Kaplan could be said to be "smart" is that he didn't feel comfortable singlehandedly dealing with the conflict between the DMCA and the Constitution, and so chose to simply uphold the most recent law, ignoring the fundamental law upon which the United States is founded; or one could say he is smart in that he has protected a possible future consulting revenue stream from his former employer, Time Warner, by not alienating them with a ruling counter to their interests.
But why CmdrTaco should think that is "smart" is beyond me. Kaplan is either stupid or corrupt, or both.
reading through the article and then the comments here - especially the ones that address the abilities of the judge i can't help but point out that the whole system is perverted.
trial by jury, for example is based on Guild trials in the dark ages - members of the jury would be professionals/ craftsmen of a certain guild and would decide if another guild member was guilty of something or not.
do you see wher i'm getting here? any decission that involves technology should [can not] be made by a judge - not even by a panel of judges, let alone higher courts.
decissions such as in the DeCSS case should always be made by a jury - which consists of experts in the field.
why on earth do judges hear expert witnesses, if they don't really follow their advise? wouldn't it be better if those same experts passed the judgement - together with remedy advise - and then leave it up to the judge to decide on further action?
why do courts trial everyday stuff [murder and mayhem] in front of juries, while landmark decissions are usually done by judges alone, without anybody else being involved?
obviously they do that because that they believe that normal people are not qualified [but they are qualified to decide if someone is a murderer or not]. at the same time they believe that experts in the field are not qualified to pass a judgement on their own field of expertise.
judges on the other hand, may or may not know applicable law [provided there is any] and of course - well, what else do they know? nothing really.
the legal system basically decides that technically a judge is qualified to operate a network, drive a truck, pilot a plane, develop software, and do just about everything else - after all, why else would everyone rely on judges making decissions that affect network operators, truck drivers, pilots, software developers, respectively?
The point you raise is certainly valid. In fact, I believe that Kaplan did understand the technology, per se, in rendering his opinion.
However, I see the open source movement and, perhaps, the "Average Slashdot Reader" as something that has extended at least a bit beyond technology into a community/subculture. When a judge makes statements lumping Hackers, Crackers, and Open Source proponents into the same group, he clearly does not have a handle on what this group is about or the subcultural issues that may come to play here.
For the DeCSS case, the open source movement as a subculture is certainly at issue as much as the technology.
Declaring laws unconstitutional is not a power granted to any court, even the Supreme Court. It is instead the logical extension of the Supremacy Clause of the Constitution as applied to court interpretation of conflicting laws. As such, it is an implied power held by every court, not just the Supreme Court.
There's no "we" in team, only "me"
From the article:
District Judge Lewis Kaplan doesn't truly dislike hackers and open-source programmers, not exactly.
Kaplan, who sided with the motion picture industry in a landmark DVD-descrambling lawsuit this year, simply views them as lawless miscreants.
Woah! I missed the boat or something there. Since when were hackers *always* open source programmers, and open source programmers *always* "lawless miscreants"?
Mr. Kaplan, I award you one troll moderation.
-CoG
"And with HIS stripes we are healed"
-CoG
"And with HIS stripes we are healed"
Handel's "Messiah"
It is the current government of the United States which is lawless, holding itself above the law of the land, and violating that law of the land by prohibiting us from doing this and commanding us to do that. Today's lawyers and judges don't even know the distinction between legal and lawful. My actions may not always be legal, but they are always lawful. So put that in your fuckin' pipe and smoke it, "your honor".
Fuck Slashdot
Yep. For Kaplan, seeing a DeCSS extremist is as easy as looking in the mirror. :-)
"Members of the hacker community then stepped up efforts to distribute DeCSS to the widest possible audience in an apparent attempt to preclude effective judicial relief,"
as if the community were all bound by US law. This is too big an issue for one (very fallable) country to regulate.
But what can we do?
Well, you might try something along the same lines as what I'm doing. Failing the conviction/time/desire/ability to do that, there's always the old standbys of democracy: make some noise, get your Congresscritter's attention, esp. at the state level, and get some legislation allowing/requiring competent judges on difficult cases. (See here for more on that.)
According to Kaplan:
Given that there were already concerns about his impartiality (due to his past), and he didn't believe that he (since, presuambly, he would include himself amongst "judges") was equipped to deal with this, why on earth did he not recluse himself? It's like saying "I stand by my judgement, but I have no idea what I was doing because I never learned how."
Aside from that, not much he said was a surprise - we knew he held "our side" in pretty high disregard, and that he had a strong bias toward the big money. Big shock.
Karma: Excellent, but still won't get you laid.
By reading about Kaplan and some of the other judges who have ruled on these tech/coding cases like the DeCSS business, I wonder how qualified most judges are to rule on technology...
I understand that their primary training and expertise must be in law, but law always exists within a context. Much of the judicial system is made up of older judges who are only marginally competent with technology and who are clearly outside of the context of the internet, open source movement, and so on. Yet they end up ruling on a social subculture using external and often ill-fitting norms and standards.
But what can we do?
Now i'm not sure that this is the best approach for dealing with this matter. If you look at source code more like a recipe (and sure you can print, reword, speak and sing recipes if you want .. "2 cups of butter 8 pounds of eggs" ..) - but the intent (once again subjective) of a recipe is mostly different from many casual conversations in that it involves specific instructions on how to create/destroy something which is a different class of speech than saying "I think you suck because foo blah gah gump" ..
Now I believe in this aim DeCSS has a stronger case - If you can begin to show that the use of a recipe (albeit a pretty bad one) has limited the freedom on the distribution of a better technology for all people - I think you have a case that's more akin to that of oppressive and controlling governments within the US federal government (in this case the standards organzations of the DVD Consortium controlled by corporations such as the MPAA) whose intent is to deny access to the enjoyment of a work of art because they have implemented a bad business model to begin with. The proliferation of this business model is based more on (once again subjective) an issue of maintaining control because it is more profitable for those with vested interests to prevent change. This stays a little truer to form and brings in the human side of the larger issues involved.
Now if the artists didn't support the MPAA or RIAA, I think they would find a better distribution mechanism and a better business model for truely talented people to shine without the corporate spin of opinion on what's good and what's not .. in other words .. we need to open source Art! and other areas of IP that have come under the hand of self-seeking corporations bent on controlling people through closed standards.
...if the 'peter principle' applies to jurisprudence.
His quote:
"Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions"
is a complete cop-out.
He's right, judges don't get special training. To become a judge, You must go though 7+ years of law school, various bar exams, and gain experience as a practicing attorney *before* being appointed to your first bench. You'd expect someone capable of going through this process would be smart and experienced enough to reason out most situations, and be capable of doing the research and critical thinking necessary for previously unexplored areas. This is exactly what we've seen and expect of judges in previous cases such as the Microsoft Antitrust case, the CDA, etc... Indeed, most other courts, especially the Appeal and Supreme Courts, do this on a regular basis.
One of the reasons we have courts is to make decisions in situations that are unclear or apparently aren't covered by legislation. This is called *judicial precidence*
In his quote he's declaring he's uncapable of this type of performance.
with copying? Maybe the MPAA is really worried about people manufacturing NON CSS compliant machines, which would be out of their control.
They must have known that making the source code illegal would have little effect on it's free distribution, but when someone would try to make a DVD player using DeCSS....bango, instant lawsuit on a federal level.
The fact Linux users will still use this to play DVD on their desktops doesn't bother them, but John Q Public running down to Best Buy or Walmert to buy a player that can play ANY region CD does.
Kaplan knew this, he must have.