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.

Comments

Smart guy?

[0xdeadbeef]

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
--
Bush's assertion: there ought to be limits to freedom

There's smart, and then there's "smart"...

[alienmole]

"Smart" is relative. By some measures, anyone who passes law school and the bar exams is "smart". But compared to many other thinkers in our society, Kaplan is mediocre at best, and as much admits it when he extrapolates from his own lack of competence in these matters, to arrive at the preposterous conclusion that all judges are as ill-suited as he to rule on such cases.

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.

Hacker == Open source programmer???

[Christ-0-Geek]

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"

Hmmmm

[karma_policeman]

He didn't criticize the movie industry directly, but he did say that "you really don't have to look very far to find the extremists on either side of the issue."

Yep. For Kaplan, seeing a DeCSS extremist is as easy as looking in the mirror. :-)

Circumvention

[Chrome Octet]

I particularly take issue with Kaplan's statement

"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.

Then what the hell do judges do?

[hiryuu]

According to Kaplan:

"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."

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.