Slashdot Mirror
EFF Appeals 2600 Decision
eclectro writes "The EFF representing 2600 has appealed the district court's decision that banned the posting of the DeCSS source code on websites. The case will be argued in April." EFF's brief makes good reading. If this is new to you, we've posted a few things about the DeCSS cases before.
Now to the real issue. If you buy a book, you can include a passage in a review or an academic article without prior permission. If you buy a protected DVD, it is currently illegal for you to include a passage in a review or an article. If you buy a book, you can type it into your computer to facilitate automatic searches. If you buy a protected DVD, it is currently illegal for you to decode it through your computer to facilitate automatic searches. If a book (or magazine) has ads interspersed with the content, you can cut them out. If a DVD includes ads, it is currently illegal to remove or bypass them. With a book, it's fair use. With a DVD, it's illegal.
The core question is control. The industry believes its pocketbook relies on controlling what you can and cannot do with a DVD. Many artists also feel they have exclusive rights to control what you can and cannot do with their work. Traditionally in the US, the majority of the control has rested with the citizen who purchased the work (now solely referred to as a consumer, go fig). In many people's eyes, this makes sense. The citizen is the one who paid money for the work. The citizen is the one with the physical medium holding the work. Some control was traditionally reserved for the artist, who then gave it all to the publishing industry. This was to allow the artist to recoup costs and make a bit of money to start the next work. Now it's used by the publishing / recording industry to pay for expensive offices and little, fake statuettes. A bit is used to take risks on ``the next big thing.'' These risks almost never pay off, so they are rarely made. (The next big thing almost always comes from outside the traditional publishing industry.)
This changed with a little bill known as the Millennium Digital Copyright Act. The citizens' representatives gave citizens a big ol' middle finger and ate very well at meals bought by the publishing industry. Now the publishing industry gets to tell you how many minutes of commercials you must watch, and they get to determine which reviews are allowed and which are not. Of course, they swear up and down that they'll never use those powers. Then they turn around and sue people who have produced technology to return fair-use rights to the citizens. There are no balances to the powers granted by the DMCA. They will be abused. Many would claim that they are being abused.
That's a little bit on why this is moral and should be legal. Others can fill in more details.
I am disappointed by this sentence from EFF. The problem is with the "CSS is designed to prevent copyright infringement" part and it just shows that MPAA has actually gotten EFF itself to think it their terms.
CSS is not designed to prevent copyright infringement. CSS is designed to prevent copying. (The fact that it doesn't work is a whole other topic...)
If I can take an invention that accomplishes an easy-to-understand low-level specific, and claim that its purpose is to achieve a particular high-level goal (which is one among many of the high-level effects), then I can get away with all kinds of amazing lies. For example: a gun is a medical instrument. (Rationale: you can use a gun to euthanize an infected patient so that they don't infect other people.)
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
These academics need access to old data, really any old data, the more the better - even the most boring or transient stuff could be extremely useful to somebody sometime. In the nineteenth century (for instance), most records went onto paper. Paper is a surprisingly durable storage medium over the long run. By contrast, we in the later twentieth century create much more data, but increasingly it gets put in formats that may well be unreadable ("dead media") in 20, never mind 200 years' time. The data may have degraded beyond recovery by the time researchers come back to it, even assuming that they can still get a working media player to read it. Or take the celebrated case of the US federal housing data, stored on paper tape or something some decades back. (I'm afraid I can't remember details, and I'm in a hurry to get this posted). There are historians, sociologists, economists, social geographers and others who would kill to get the chance to sift through it. They may never get the chance, for while the data has been well preserved, and physically reading it isn't a problem, nobody knows what the data format is anymore!
For these reasons, these academics have mixed feelings about the increasing computerisation of our data. Now we throw in the DVDCCA's licence control, soon , it seems, to be followed by similar locks on recorded music and even electronic texts. If you think these restrictions are going to make academics' lives hard today, just wait 40 years or so. Getting working media readers and transferring the data onto new media for safekeeping might now be not only impossible but actually illegal. Who will be holding the DVD licences in two generations or more's time? Will it even be clear who holds them? Who would care to bet that they'll feel like helping out academics as a public service, instead of, say, shaking them down royally for every disk they save, possibly even pushing some ideological agenda in dictating what can be saved, or God knows what?
Clearly, every half-decent humanities and social science department in the USA and beyond should be up in arms by now. They're very obviously not, and I'm reasonably sure that it's because they are still largely unaware of the DMCA threat. My father is a full-time professional historian, a member of the American Historical Association and a subscriber to their journal. The first he heard of the DVDCCA and the DMCA was from me. The word isn't getting out to these people. It's all very well for the EFF to have a very popular website, but if it can't reach what should be a huge grassroots support base, it's just not functioning well as a pressure group.
We can't afford not to pick up allies like this in such an important fight, not when we're up against hugely powerful organisations like the DVDCCA and MPAA. Fortunately, it's easy to make a start. If you have the ear of a non-science academic, take the next chance you have to bring them up to speed on what the DMCA will mean, not just for video but soon for audio and texts as well, and encourage them to spread the message to their peers.
Don't forget to join and support the EFF. The MPAA has plenty of money from selling all those VHS tapes, DVDs, movie tickets, etc. The EFF only has what we can give it.
Broke? Student/low income membership is $20. That's what, three pizzas from the cheap pizza parlor? Two CDs? A month of saving a buck a day by skipping that vending machine soda every weekday....
Not broke? Got stock that is still worth more than you paid for it at the IPO? Need a tax deduction? They're a registered nonprofit.
Lazy? They take Visa and Mastercard, American Express, PayPal, and a bunch of other options. If you'll shop online for your music, books, games, hardware...how about shopping online for your rights?
(And see if your employer might match your donation.)
Remember that this is just the first round of appellate briefs, so four months is not that far away. Next Friday is the due date for amicus curiae (friend of the court) briefs in support of 2600, of which there will be several (including mine). Then, the studios do their brief in a month from now. A week after, their amici file, then 2600 does a reply brief. So the interval from the last brief to the oral arguments is not that great.
I think the most interesting part of the EFF argument was about functionality of speech.
Part of the ruling of the District Court was that "functional speech" was not granted the same protection as other modes of speech. The EFF argued that nothing in the first amendment, or until now, the judgements on the first amendment, had ever made a distinction between "functional" and "non-functional" speech.
If speech isn't meant to have a function, and have an influence on things, what is the point of speech? This would be a world of totally reflective speech, where speech will only be able to repeat or abstract what already exists. I think that speech is inherently meant to change things and have a function, not just to describe the world as it is. If the courts seem to think that only descriptive speech is protected, I think we are in trouble.
Hopefully I didn't put any [] around my words.
There is only one body that can prevent such a thing from happening, and its not the government. It's the people; frankly, most people don't care. They would rather watch their movies in Digital Surround Sound and Digital Image Quality in trade for their rights of fair use then boycott the whole damn thing and demand better from these companies.
Whatever the court decision, this issue in a broader sense is not going away, and WON'T ever, and its going to keep on getting worse as people keep on selling their rights away for comfortable living. Does it remind you a little bit of something, like perhaps the fall of Rome?
Ah well. It was good while it lasted.
Probably being redundant in posting this, but if you haven't already read the other posts about the subject here on /. you need to be whacked upside the head.
The DeCSS source code could be used for other means other than piracy. Or would you prefer that in order to play a dvd that you legally own you must have windblows since anything open source would void the copy protection code. In my case I can't really argue anyhow since I'm not using any *nix derivative on the machine that has a dvd player. (Only because it's a company loaner until they decide it's really obsolete and give it to me.) Of course this does become extremely relevant when I finish building my new system because I intend to have FreeBSD on it. Whether I keep the laptop or not, I still own the discs and they are useless without a player. And a dvd drive is useless without software.
I also think that taxing blank media is a dumb idea. What happens when I don't use the blanks for "copyrighted" material, but personal stuff? Hmm? So now if I need to make a backup of corporate pdf docs, or put together a utils disc that has all the stuff a new hire might need I get taxed to support the media industry? I think not. That is nothing but a load of bull. Who decides who gets what for compensation anyhow? If you put all the taxes into a slush fund that feeds the artists, how do you decide how much an artist gets? And whether the people who made the product CLEARLY don't want it used that way in your words, have you stopped to consider that as a consumer you have a right to use the product you bought as you see fit as long as you don't profit from someone elses work? When are people going to wake up and realize that copy protection doesn't hurt pirates as much as it hurts people who have a legit copy and need to make a backup so that the original doesn't get scratched, or wants to use an alternate operating system with the software/movie. Good thing they haven't thought of taxing DNA just because someone might figure out how to store computer data on it.
One of my real pet peeves are people who think something needs to be taken away just because a few individuals can't use it properly.
Instead, 2600 Magazine was found liable for publishing a technology that might someday be used by someone to access a movie without the "authority" of the copyright owner. The District Court acknowledged that the published material, the text of a computer program called DeCSS that decrypts the data on DVDs, has substantial noninfringing uses, including scholarly study of cryptography, enabling fair use of copyrighted movies, and development of competing DVD players.
Copyright owners have never had the right to prevent such uses. The District Court's interpretation of Sect. 1201, however, now gives them this right.
1) If I write a program for a nuclear reaction in a science textbook, derived from the Hiroshima bomb, for study of physics, chemistry, or epidemiology, am I guilty of violating the terrorism laws?
2) The people who jump onto DeCSS posts are motivated primarily by a profit incentive and seem to think that this right to profit abrogrates our First Amendment rights.
3) The fair use agreement, which is something I use all the time as a journalist, gives me the right to use whatever tool I want, including an open-source tool written by a gifted private individual instead of a corporation which catalogs and reports your every use of their technology to marketing departments and federal agencies.
Oh that stupid cliche, Information wants to be free. It's true. Information is a valuable commodity like everything else under capitalism, and the only principled stand being taken against 2600 is not a protection of artists, but a protection of profit. Many artists have spoken out in support of this freedom.
Goat sex free since 2001
I was getting a bit worried that this wasn't going to happen, and that a bought and paid for corporate hack, the dishonorable "judge" Kaplan was going to be allowed to have the final word on this...
Kaplan failed to uphold his responsibility in this case in several ways... Among them:
1. He failed to apply the required Constitutionality test to the DMCA. In so doing, he not only interpreted the DMCA in it's most narrow way possible (ignoring the clause that allows circumvention devices for uses OTHER than piracy, such as creation of a Linux DVD player), but he EXTENDED it by adding to it making hyperlinks to DeCSS illegal...
2. He failed to disclose his previous DIRECT ties to the MPAA, which was, if memory serves, being part of a law firm that had once REPRESENTED them. He then refused to recuse himself when it was requested of the defendant. He EXCORIATED Martin Garbus, the lead attorney for 2600, for a much lesser (and trivial) conflict of interest (Garbus once represented a media company later bought by Time-Warner).
Point #1 could be excused as incompetence, though, IMO, that is no excuse at ALL for a federal judge.
Point #2 leads me to believe that the actions in point #1 were because Kaplan is extremely corrupt. He worked for a MPAA lawfirm BEFORE he was a judge, and, likely, he will work for one AFTER. He stood to gain a LOT of money for ruling in the way that he did, for the MPAA. That is impeachable. Judges in particular should be held to the highest standards of character and conduct in a case. For the very reason that Federal judges in particular, weild a TON of power.
=== The price of freedom is eternal vigilance