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DVD Case Follow-Up
sirhan writes "The ACLU made a court brief today concerning the DVD CCA case. The release can be found here." There were actually a number of amicus briefs filed at the same time for this case, and now I think most of them are online. Journalists and publishers, law professors, law professors II, the Association for Computing Machinery, programmers and academics, library and public interest, cryptographers, and Arnold Reinhold. These are all in support of the EFF's appeal in the case, of course. The briefs make good reading because they attempt to convey, in a very direct and concise manner, the arguments of these various groups against the DMCA.
The only question is with which notions to brainwash them. My personal belief is that children should be brainwashed to think logically, to be inquisitive, and to be self-reliant. Thus my children would not be going to one of these "faith based" programs. However, for those parents with different values, who will raise their children to be narrow-minded religious zealots anyhow, what is the harm of allowing them to send their children to the brainwashing institution of their choice?
-E
Send mail here if you want to reach me.
Not likely. Assuming 2600 wins, they only need to win on one of those three grounds (or some other ground). There is no need for a judge to stick their neck out to establish that "Restrictions on linking are restraint of free press" if they decide that "The DCMA circumvention clauses are not a valid use of constitutional power".
I can hope that all three are held, but I expect not. Well I guess if it goes to a N judge panel (say the suprime court) some judges may rule on (1) others on (2) and others on (3), but I'm not sure if that eastablishes all three as legal doctrone, or only any (if any!) of the three that get a majority...
be troubles some be converted to
and that the makefile convert them back to C.
No takers so far, but we'll see. I'm hoping the
upcoming litigation will render such a tactic unnecessary (to use it, people would have to distribute Perl 5.6 and higher, and Parse::RecDescent in every tarball).
If it does become necessary, however, I will
compile the grammars I wrote to ease the distribution.
Besides, it's not just about $. An organization that has more members has better standing, I would think.
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This is my SIG. There are many like it, but this one is mine.
Read page 13 of the ACLU amici... it states..
"The constitutional interest embodied in fair use, however, do not evaporate merely because a copyright owner uses technologocal wrappers to protect copies of its work. And just as Congress could not repeal the fair use provision of US copyright law without creating serious conflicts with the First Amendment, it cannoe accomplist the same result indirectly by banning all technologoes through which fair use can be made."
Ka-BOOM.
It's impressive that our Congress (Specifically) has the balls to squash the First Amendment.
Pan
I said no... but I missed and it came out yes.
Well, I've been on a fishing trip... the DMCA is really flakey, more than anything. Having been born from the UN sponsered WIPO (which is mostly funded by private industry) and spawned into a monster.
..."
.substantial non infringing uses"
7 9.html
Interresting comments from the Senate Discussion..
These are comments about a version of the bill that was later changed.
Can you guess which Senator said these remarks?
"It thus should be about as clear as can be to a judge or jury that, unless otherwise specified, nothing in this legislatuion should be interpreted to limit manufacturers of legitimate products with substantial noninfringing users - such as VCRs and personal computers
"As important, the amendment reflected the working assumption of all of my colleagues that this bill is aimed fundamentally at so-called "black boxes" and not at legitimate products that have
But that's not what heppened. I think honestly that Congress was brainwashed into thinking that they were protecting an industry from Chinese pillage. I remember probably 20 stories on NPR about the poor movie industry having no protection from piracy. They had no idea that the MPAA would take it's new found freedom and create a virtual monopoly on DVD device manufacturing and distribution.
It really is a shame that nobody in our great Congress understands!! But atleast Orin Hatch (The original DMCA Sponser nonetheless) has all but said it was a mistake.. even going so far as to invite the creator of Napster to speak with him! ( http://www.theregister.co.uk/co)ntent/archive/141
What is sad, is that I used MY tax dollars paying politicians et cetera to come up with this law (I personally paid 33 cents to each one, if my figuring is right), and I am helping pay for the legal cost of overturning it. Damn.
Pan
Ohh, and the comments were from Senator Ashcroft. He even mentions the Betamax case as a standard
for the DMCA to abide by. ( http://www.hrrc.org/html/DMCA-leg-hist.html
)
I said no... but I missed and it came out yes.
These are several, strong briefs attacking the DCMA and CSS from several different angles: authority, freedom of speech, freedom to link, unconstitutionality of the act. I can't imagine that much will be left standing once the courts are through. Hollywood may have bought Congress and the White House, but they haven't bought the Judiciary -- yet.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
The parallel with recent events is so obvious that I'm convinced this was written to double as a deadpan poke at the antics of the DVDCCA, MPAA and co.
It's all well and good to be self-congraturlatory about these briefs (and yes, they are great work), but I would like to see stories/discussion on what the other side is up to.
After all, what the enemy is doing should be just as interesting and important news as what we are doing ( why else would Slashdot include so much danged MS coverage, anyway... ;) )
Worse, it would make hash of the First Amendment. Even under existing contribution regulations, the IRS is proposing to regulate Web links on pages published by non-profit organizations. McCain-Feingold would open the floodgates to similar abuses against any individual or organization in the country.
/.
/. If the government wants us to respect the law, it should set a better example.
'Cuz if double DES and triple DES were just as strong, then nobody would consume the extra CPU cycles or hardware traces to do 50% more computation, just to have the same results.
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It wouldn't really matter if it wasn't constitutional anyways since the constitution is more or less a recommendation for laws rather than hard limits.
Wrong. The constitution exists to prevent the tyranny of the majority -- in this area, it has absolutely firm limits on what is allowed. It's largely a list of restrictions on what the government is allowed to do.
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Also, "News for Nerds. Stuff that matters" doesn't have any mention of "Linux" or "open source" or anything like that. In fact, even if it did, I would think the subject matter would be influenced by what its readers want to read, not by what some random guy named Rob (or CmdrT4c0) wants to see.
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But suffice it to say that even if DMCA is struck down, there will be a lot more fighting to do.
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Oh bah, so they make one political decision once in a while. That doesn't mean they should instantly be regarded as corrupt.
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Not to mention that the DMCA is just the implementation of the WIPO Copyright Treaty that the US signed, along with many other countries. So there's a lot of political motivation to not overturn DMCA.
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You'd need someone who would be willing to do the following:
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The good of the many (MegaCorp, Inc.) outweighs the good of the few (the lone individual who's hard to control).
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No doubt. From the cases I've seen where the feds managed to decrypt some suspected files, often the key was gotten directly from the user in some way (cache laying around on disk), rather than brute forcing the password, because such human engineering efforts take less time.
For instance, which would cost more? 10e27 as much brute forcing equipment? Or financing a tactical operation to get someone to leak the key from the inside, and provide enough money to keep that person from being exposed? After a certain point, the something akin to the latter becomes more cost-effective. (though the advantage of the former is that it can sometimes be done with mere brains and time, which are things that bored college students often in abundance)
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Correct. Actually to be more specific, the Constitution is supposed to be an enumeration of *all* the powers that the federal government has. The regularly ignored 9th and 10th amendments emphasize this point, reiterating that powers not explicitly granted to the federal government are reserved to the people and the states. Of course this means that the majority of what the federal government does is unconstitutional, but that argument won't work very well on April 15th.
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
What I was thinking (although I don't really see any use for such an OS . . .) was to distribute an encryption key for the binaries to be encrypted with, and compile the decryption key into the kernel. Kind of like a public-key/private-key system on an operating system level.
On the other hand, if the operating system was open-source, an encryption/decryption key generation prog could be distributed with it for people building their own distros. For security purposes, perhaps, only programs encrypted for that specific distro (perhaps a bank's internal distribution, or a DoD network) would run. And they wouldn't run on other systems.
At any rate, I figured that if the DVD format was upheld by the DMCA, there could be threats from it on the reverse-engineering front.
"Encryption" is simply the word we use to describe information that is stored in an unconventional format. One could conceivably write an operating system that uses Blowfish-encrypted binaries as its standard binary format. It wouldn't be the quickest OS since it wouldn't use processor-native code, but if it were released as binary-only, would it be protected against reverse-engineering under the DMCA?
There wasn't any need for hacking the Xing executable - bruteforcing everything from the crap algorithm itself would had been just as easy.
it's in my head
There is no really big change comming. What is being proposed is alowing "Faith Bassed" organizations to bid on "charitable" contracts. They can already do that by creating a seperated organization with a supposedly independent administration. Essentially, the "faith bassed" groups would no longer be hobbled with extra administration costs in order to compete to do good works. They will have to meet all the qualifications of non faith bassed organizations. That's a far cry from establishing an official religion.
Friends don't help friends install M$ junk.
OK, I violated your stinking EULA contract. No need to make a federal case of it or search my house. Here's the stupid DVD, now give me my money back. Contract over, piss off.
Friends don't help friends install M$ junk.
I don't understand why no one challenges the premise that CSS is a copyright protection device.
Why is it accepted as fact when it is obvious that CSS has nothing to do with copyright protection - a CSS encrypted disc can be duplicated ad nauseam just like an unencrypted disc.
Why doesn't someone just state the obvious - CSS is simply about generating more money by creating artificial market barriers and designated hardware vendors.
Maybe then the whole case will be dismissed as a non-copyright issue which has nothing to do with the DMCA...
Most Courts of Appeal do not announce which judges will hear the case until the day of oral argument. That way, the parties cannot try to tilt their briefs to attempt to influence specific judges.
Usually three judges hear an appellate case. The court can also hear it "en banc" which means that every full-status judge on the court sits on the case. Even when only three judges hear the case, they usually circulate the opinion to the non-sitting judges to see if anyone has big problems with it before releasing it.
The result is a much more intensive examination of the legal issues, not as subject to the biases of any one judge.
Yes - I like the idea of doing a Slashdot brief. After all, Slashdot readers (mostly Technical type people) have a huge interest in ensuring that the development of Open Source, Free (as in speach) software is allowed to continue.
I'd certainly sign up to this. Anyone else feel like joining in? What about CmdrTaco and the other Slashdot guys - would you be interested in this?
Of course this is scarcely exclusive to the DMCA. There are a lot of attempts underway by various interests that would allow them to defacto write their own laws about their products. Shrinkwrap licenses are another excellent example. If a company is allowed to place restrictions in addition to copyright as required conditions of gaining access to their products, then they are effectively allowed to legislate additions to copyright. Hell, if shrinkwrap licenses are deemed to be legal, those companies don't really need copyright protection either; they can just put "no copying for any reason" as one of their shrinkwrap terms and they've gotten all the protection of copyright and then some. It's ludicrous.
There's no point in questioning authority if you aren't going to listen to the answers.
we have to look at the amount of money involved here, and realize that the current administrateion seems to e planning to run the government, 'like a corporation.' There's good and bad to that, and I think we're about to see the bad.
Regardless of the merits of the arguments, I expect to see money win, here. I regret having become somewhat cynical about this.
Nor do I expect anything better out of the Supreme Court, any more.
The living have better things to do than to continue hating the dead.
The 40 bit key length of CSS was almost certainly due to the export restrictions that existed at the time. As much fun as conspiracy theories are, a 40 bit key corresponds just too well with the 40 bit export limit when CSS was designed.
There are plenty of fast algorithms that can use 128 bit keys and are quite fast and efficient. Even tripple DES (112 bits) is fast and easy with a little dedicated hardware. 2^128 is a whole lot more than 2^40, in fact 2^88 times harder to brute force. 2^88 is approx 3e26, so your 10e27 is just about right for CSS-II with a 128 bit key length.
Of course, all the key length in the world isn't going to help when the key is stored in a software-based player and a pair of anonymous German hackers team up with a 16-year old kid for a not-profit-motivated reverse engineering effort.
PJRC: Electronic Projects, 8051 Microcontroller Tools
New Story: 1970s Newsflash
A radical new paper-industry company, known to insiders as "Xerox", are now in court against a coalition of publishers, including Mills&Boon, Future Publishing, Penguin, Black Swan.
It appears that the Xerox corporation are planning to introduce a radical new machine, which they claim will soon be commenplace in offices around the world. This new machine will be capable of making accurate paper copies of any book, magazine, or other publication ever made, without any payment being made to the original publisher or author.
It has been suggested that in thirty years' time, it would be possible for Xerox users to use the same technique to copy movies for their own private use.
Surely the whole world must be united in stopping the evil Xerox corporation.
Author, Shell Scripting : Expert Re
"Almost" I'm sure this was the plan from the very start. In fact I would not be surprised to learn that it was planned out with the people now writing about it. In this sense it was a good thing the lost the first trail and we now have a chance to just maybe take it all the way to the top. I agree with you this is a *very* good thing.
Cypherpunks: Civil Liberty Through Complex Mathematics. Those who live by the sword die by the arrow.
Yes, indeed, and it is very important to note. When practicing civil disobedience, it is very important that the case ends up in court, and the higher the court the better. Hopefully, at some level, in some court, there is some judge who gets a clue, and understands that the law is unjust, or that there are other concerns that must be valued higher, for example the Universal Declaration of Human Rights, in our case Article 19 is important. Then, there will be a powerful drive towards social change, that's what you aim for.
If you go around breaking the law, and try to hide the fact that you break it, there is little drive towards social change. It could be that you make the law effectively unenforceable, but you might as well see more unjust laws.
So, take pride in what you do.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
The idea of granting protection for copyrighted material is a good one however the current implementations have all been bad. I seriously doubt that they can be modified enough to protect individual rights Vs the Studios and the rights of the artists. The Studios supported the DMCA because it insured that they would not be taken out of the process at any time in the near future. It also makes them money. Anyone who seriously believes that the studios are trying to protect the artists rights with the DMCA needs to visit a shrink most promptly. The only solution to this situation is for a new system to be developed. An open source development process would be perfect for systems of this type in my opinion. We all know that if the DMCA is struck down the MPAA would start the next day pushing for it to be replaced with a new and possibly worse system. How would you protect the disparate rights of the Studios, the Artist, and the public? Remember the system while granting fair use would have to prevent or make duplication of the media harder.
"GET / HTTP/1.0" 200 51230 "-" "Mozilla/4.0 (compatible; Setec Astronomy)"
I've written letters to my congressmen about the DMCA (as EVERYONE here should, not just emails, but actually paper letters). I got only one response and that was from Senator John Kerry.
In his letter, he wrote, "... court rulings will, to a large extent, determine the strength of this law."
It angers me to no end to know that our congress knowingly passed an overly broad law in order to satisfy an international treaty, but have left it to the courts to figure out what it means. Shouldn't they know what it means and understand the consequences BEFORE they pass it?
Remember that the DMCA was written to comply with the WIPO Copyright Treaty. In an effort to kiss the asses of foreign governments and multi-national corporations with huge donation pockets, the DMCA was passed by a unanimous vote (it was actually a hand vote, so there's no record, but I've seen the word unanimous used).
-Steve
--- What parts of "shall make no law", "shall not be infringed", and "shall not be violated" don't you understand?
I would like to think that all of us, worldwide, could help fight this, but the question comes to mind: Is this a global issue, or an isolated (American) issue?
I would like to hope that in the worst case scenerio having other countries without these laws may still provide hope for those without. However with recent events (i'm thinking of the whole yahoo! vs France issue here), I'm concerned that this may be the initial step in a globalized domino effect.
eno.
Fair use, as you point out, gives me the right to make a backup copy. But I can also make as many as I want -- so long as I do not resell or otherwise redistribute them. If I want to back it up to hard disk, that's my business and DeCSS gives me that capability.
The problem with corporate entities deciding what I can and cannot copy is that they don't have my interests at heart nor are they interested in protecting my rights. They like the idea of forcing people to buy a DVD and a VHS tape of the same movie to watch in two rooms. They want to make me buy a CD for home use and a cassette for use in my Jeep. And, by preventing me from copying anything, they can insure that I buy them again if I ever damage the copies I have.
Your claims about the validity and legality of shrinkwrap licenses are equally unfounded. Show me a history of court cases that have held shrinkwrap licenses to be binding.
Troll.
one has to winder how this DMCA would affect modchips.. or are they illegal already? i dont know, i have one, i like my burned games ;) all backups of ones i bought, ofcourse *ahem*.
according to an article on the ACLU website, DMCA "prohibits manufacturing or offering technology -- such as DeCSS -- that allows users to bypass measures that protect access to copyrighted works." -- wouldnt a modcip fit this category? and if so, how do they plan to get the thousands of distributors of modchips? should be an interesting battle.
Ratio of replies to old sig content : replies to actual post content > 0.5. Sig changed.
If they then turn around and say 'you can't make a DVD player, it can copy _our_ stuff', you say, well, fine. SONY can't make DVD players either - those players can copy _my_ stuff! (A large reason why DVD player manufacturers aren't guilty of breaking the DMCA is that they are 'commercially viable')
Note well that the new ~$3000 PowerMacs from Apple have a DVD-RW, _and_ firewire ports. The $1600 model has DVD-ROM and firewire. And Darwin has the drivers. (Or should anyway.) There's got to be some sort of interesting & useful hardware hacks in there. [Glares at tangled pile of silly analog cables in his entertainment center]
The free speech argument is all well and good, but this seems like a much faster (and clear cut) way of dismantling this hideous law.
The other interesting thing, reading the briefs, is how many different arguments are being made here:
:-).
1) Source code == free speech
2) Restrictions on linking are restraint of free press
3) The DCMA circumvention clauses are not a valid use of constitutional power
Wow, in one case, all three of these (very important) pieces of case law are getting argued. This could set a lot of precedents in all the areas Your Rights Online cares about.
Hell, let's file a Slashdot brief. I want to be in on the action.
But seriously, each of these points is outlined by experts and concerned parties in the area, with relevant citations of law, and (best of all) easy to read explanations of *why* these points are relevant.
Can the MPAA lawyers counter this? Well, they are going to try like hell to do so... and they have every reason to expend a *lot* of money on this case now that the stakes are clear. But for now, I'm encouraged by how support is rallying for the good guys.
It's a strange world -- let's keep it that way
Yeah, but I don't think you go far enough.
Imagine you're a musician. You're poor, so you use consumer grade equipment (reasonable now that we have good desktop computers, midi, sound cards and cd burners. Nice as a studio rig is, you can get by)
The *same* mechanisms that 'protect' music from being copied if you don't own the copyright can *also* prevent you from making copies of music for which you *do* own the copyright. And yet breaking those 'protections' is illegal, because you might violate someone else's copyright in order to fully exercise your own.
If someone can defend that, I'd like to hear it.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
But try as I might, I can't find anything on their site about privacy. I've joined the EFF only after making sure they weren't going to sell/release my info. It doesn't look like the ACLU has the same types of policies.
Anyone know if it's possible to join organizations like the ACLU or Americans United for the Seperation of Church and State (www.au.org) in such away that privacy is assured? Also, is it generally better to join the national ACLU or a local chapter (both have web sites...)
Believe it or not, I emailed the local ACLU branch and didn't get a decent answer. I'm guess they're pretty busy fighting evil. ;)
W
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This is my SIG. There are many like it, but this one is mine.
The official privacy policy is here:
j oin.shtml
http://www.aclu.org/privacy.html
it says,
"However, the names and postal addresses of ACLU members, including those who join through the ACLU Freedom Network website, may be exchanged or rented to other organizations or publications under the procedures outlined below.
Members who join through the ACLU Freedom Network website are provided with an opportunity to opt out of this exchange."
but I couldn't find the opt-out button on their signup page (https://secure20.client-mail.com/aclulink/forms/
), just a way to manually request that they opt you out via an email address, which sucks.
W
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This is my SIG. There are many like it, but this one is mine.
Because, by loosing the previous case, this will allow the case to possible be driven up to the supreme court. If it had been won, then there was a possibility that the MPAA would of just moved on... leaving the DMCA in place.
Pan
I said no... but I missed and it came out yes.
Of course you can... but here's the catch: there's nowhere you can get the tools to do so. Indeed, as these tools can possibly be used to circumvent, their distribution is forbidden. So, unless you are not only a musicer, but also a good programmer, capable of writing your own tools, you are effectively banned from circumventing the protection mechanism. See this post for more details
Didn't work then. Doesn't work now.
"Freedom means freedom for everybody" -- Dick Cheney
One of my more paranoid friends pointed out to me the Federalist Society, on the basis that it is an association of judges with their own agenda, and that it is a conservative agenda. If you check out their website, it is quite the sedate affair.
This is contrasted with the very unsedate anti-federalist sites like this one, which are all a hoot, and read *every* thing the federal government does as a con, a gype, and a fake..
However there is a point here which is well made, given broader evidence by our experiences of the past few months.
There are many judges that tend to lean one way or another. Judges do NOT live in a vacuum. Commercial interests, via their lawyers and bean counters, are out for the maximum number of beans in the pot.
Aside from the obvious joke on the effects of eating too many beans (combined with lawyers, etc.), I would want to know more of the possible conflicts of interests of the judge(s) involved. You can bet that the corporate interests choose a judge that they thought would be the most sympathetic to their cause. They would be stupid to do anything else
"It is a greater offense to steal men's labor, than their clothes"
"faith-based" charity federal funding
Just a note about this:
There are lots of doling-outs of federal money that are of a dubious nature. And even more uses of federal money by organizations that somebody could object to. Anybody could probably come up with 10 examples of groups receiving federal funding whose idealogies -- whether "religious" or not (and most all of them are in some sense or another) -- are objectionable in some way. We could start with the Republican and Democratic parties, if you like.
Rather than being worried that the feds are giving religious organizations money, we should be sure that no organization is favored over another trying to do the same thing -- except, perhaps, on bases that we can agree upon, such as effeciency, desired results, etc.
Bottom line: don't make it so religious organizations can never receive public funding for projects the public would approve of. Just hold them to the same standards of accountability you'd hold any other organization to.
--
Libertarianism is rich wolves and poor sheep playing gambler's ruin for dinner.
One <a> tag nexts inside another <a> tag. Causing everthing to be screwed up. Please review html code before submitting.
Trust the source!
It is good that they are attacking the very constitutionality of the DMCA, as it does very clearly violate our rights as given by the first amendment. If they can successfully prove the DMCA is in violation of the first amendment, and therefore the supremacy clause of the Constitution, then it is an issue that will be forever buried -- no court in the future (no U.S. court, anyways) would be dumb enough to try and overturn that. If it's constitutionality was not tried, then future copyright laws might give the DMCA an additional inroad into law.
That, and the Supreme Court typically only votes on major cases involving constitutional law. This is a good way to make sure it ends up high on the priorities list.
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I Hit the Karma Cap, and All I Got Was This Lousy
We've "known all along" that the challenged DMCA provisions won't survive Supreme Court scrutiny. At least some people at the MPAA and RIAA are at least as smart as we are. So it's safe to assume that they have already begun a fallback plan in case of defeat. And it doesn't take a lot of observation to figure out a major part of it: Shift the arena of conflict from criminal to civil law. That way if you don't do what they want, they can sue your ass for violating a contract that you agreed to.
Here's how they're doing it:
(1) Make shrink-wrap and click-through EULAs enforcable. Anybody remember UCITA? Well how about this: You buy their DVD. By purchasing it you agree to only play it on approved hardware. And you agree not to copy any material from it for any reason. Even after the statutory copyright period expires (goodbye public domain and fair use). Oh yes, and you agree to never loan it or give it to anyone who might do these things. And to be subject to damages if they do so. And let's have no sniveling about rights. You gave up your rights, remember. You agreed.
(2) Get vendors to build in hardware-level limits on what you can do. Hello IBM, Intel, and the NCTIS T.13 Committee! Why, it looks like the proposed CPRM standard! Gee, this is neat: If you can't buy a digital player with a digital output, or you can't buy a hard drive that will store a watermarked music file, problem is solved. And don't think you'll get around this by finding some vendor whose gear doesn't include the restrictions. Because, even if you do, you agreed not to use it (see para.1 above).
And the diabolical thing about all of this is that, once it's in place, all a content-provider has to do is haul you into civil court for violating the EULA. And if they do, you'd better be totally clean, because item one on their list will be a motion for "discovery," which will mean getting a court order to search your home, your office, and especially your computer and its drives for any incriminating material. Due process? Hey, it's a civil case... contract violation. Criminal rules don't apply. And, oh, what if you win, but go bankrupt defending yourself? Well, that's tough... you might sue for malicious prosecution-- oh, that's right, you agreed that you wouldn't...
It's already happening!
What do you do when the law fails you?
Ignore it.
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Traditionally, US law has considered the first two levels of direct/indirect action to be unlawful:
- 1. Direct copyright infringement -- you copy CD's and sell them in Hong Kong
That seems pretty kosher. But then DMCA added two more levels of indirection:2. First level of indirect infringement - contributory and vicarious liability -- you sell someone a box whose only conceivable purpose is copying CD's, and you know what the buyer is intending to do with it.
- 3. Creating a device that can be used for circumvention of a technical measures for protecting copyright -- you figure out how to make a key.
But then this specific case tries to allege that one further level of indirection should also be illegal:4. Marketing/selling the circumvention devices -- you promote and sell the key.
- 5. URL linking to circumvention devices -- you tell someone where a key is.
when only #1 and #2 are widely considered constitutional.--
The interesting thing in reading the briefs (I skimmed most of them just now) is how high they aim. The law professors brief cuts to the chase -- they encourage the DCMA to be ruled unconstitutional, and they have plenty of cites to bolster the opinion.
:-). I guess 2600 is smarter than you think ("See, we get them to sue us... then we can bring the DCMA to court! Yeah, great idea!").
Is this the case that will nix this darn thing? God, I hope so. The DCMA is so clearly overbroad -- and that is obvious to any number of people in a variety of fields (CS, IP law, consumer protection). Now, with this case, it seems these very knowledgable people have an opportunity to make these opinions known and specifically target a court that may be able to rule on the bigger issue (not just DeCSS, but the DCMA).
gee, it's almost like this was planned...
It's a strange world -- let's keep it that way
The DMCA essentially allows corporations to create new laws on their own.
I think there are two major points that most desperately need to be pushed in attacking the DMCA:
First, it is vital to make the logical connection between banning the means to do something and outlawing the action itself. As I recall from reading the law (IANAL and I am not looking at the text right now, but I read it fairly carefully a while back), the prohibition against circumventing access controls does explicitly provide an exception for circumvention to enable non-infringing uses, i.e., "fair use" rights specifically override it. However, the prohibition against distributing circumvention devices recognizes no such exception, leaving the average would-be exerciser of "fair-use" rights in the Kafka-esque situation of being allowed to do something but not capable of it.
"They" are trying to get away with making the action effectively, but not technically, illegal. The point that needs to be made is the effect of the following logical progression:
- If an action is possible only through the use of a certain tool, then only people who possess such a tool can do it.
- If only a very few people have the skills to create such a tool, then the only way anybody outside that group can do it is by getting the tool from someone else.
- Hence, if distributing the tool is illegal, then the action itself becomes effectively illegal for all but that small group of people.
The point is that the exception for non-infringing uses needs to be extended to distribution (which I guess would be meaningless, since Eric Corley has no control over what I do with DeCSS after he gives it to me), or, conversely, to show that the exception where it is (presumably put there as a concession to Constitutionality) is "effectively" useless.This is all regarding the question of distributing vs. possessing something like DeCSS. From what I've gathered, nobody is being sued for possessing it, because they know as well as we do that that is not illegal, even if they try to spin it that way in the media. The other point is the observation that, if allowed to stand as is, the law, as you said, essentially allows content providers to write their own laws. As we've already established that the "fair-use" exception is no help for practical purposes, the effect is clearly to make it so that the technical measures that the provider implements (which, worse yet, are not even bound by any pretense of Constitutional limits) dictate what a user can and cannot do -- the fact that he may circumvent the controls under certain circumstances makes no difference unless he is capable of doing so, or unless Kafka is making the rules. By a similar line of reasoning as above, this means that the provider's decrees effectively become law. Since corporations are not part of the elected government, they should not be given legislative powers.
David Gould
David Gould
main(i){putchar(340056100>>(i-1)*5&31|!!(i<6)<< 6)&&main(++i);}
The Intellectual Property Clause ... permits grants of exclusive protection only for those "discoveries" in the "useful arts" that would not have been obvious to one reasonably skilled in the art, Graham, 383 U.S. at 6, and only for those "writings" that constitute original expression, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991). Congress may not extend protection to unoriginal subject matter, nor to ideas, processes, methods of operation, and the like unless the threshold for patentability is met. Feist, 499 U.S. at 349-50; Baker v. Selden, 101 U.S. 99, 103-04 (1879). Nor may it grant protection for proper subject matter in perpetuity. A law that protects informational goods without regard for these limitations cannot claim the Intellectual Property Clause as its authority. The Trade-Mark Cases, 100 U.S. at 93-94 (holding that Intellectual Property Clause could not authorize law protecting trademarks regardless of "novelty, invention, discovery, or any work of the brain" or of "fancy or imagination").
The anti-device provisions do not meet this exacting standard. They operate regardless of whether the device is used to access information that is a constitutionally protectable writing, regardless of whether the work so accessed has passed into the public domain, and regardless of whether the desired use of the work would infringe copyright.
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