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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.
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
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.
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?
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.
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.