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.

Comments

The "Enemy" is *ALREADY* Fighting the NEXT Battle!

[Anonymous Coward]

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 happens if 2600 lose the appeal?

[Sanity]

It is worth considering what should happen if 2600 lose the court appeal (and any subsequent appeals). Personally I subscribe to the view that it is the responsibility of every patriot to ignore an unjust law (although I am not American). We are fortunate in that it seems technology is on our side. As communication technologies such as the Internet improve, attempts to prevent communication and the sharing of ideas (such as the DMCA) will become more and more difficult to enforce. Systems such as Freenet hold the promise of making enforcement of these unjust laws next to impossible.

What do you do when the law fails you?

Ignore it.

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Re:What happens if 2600 lose the appeal?

[JWhitlock]

Great idea, coming under the title "civil disobedience". Many protesting today like to call their actions civil disobedience. They often forget, however, that there are two components to civil disobedience - breaking the law, and suffering the consequences. The idea is to show that the state is unfair in having the law, but more unfair in enforcing it.

Ghandi didn't become famous because he and his followers were criminals / law breakers. They became famous because they were imprisoned and beaten for breaking unfair laws, and this behavior on the part of the state turned public opinion against the state.

Same with Martin Luther King and other leaders of the US civil rights movement - the scenes of violence on the part of the state against demonstrators turned the tide of public opinion against the state, leading them to action (overturning those laws).

The state should respond to the citizens - if the law is being broken uniformly, either the state needs to:

Educate the public (assuming they have not been informed or do not understand the law),

Enforce the law (assuming the law is being broken because the public believes the state will not enforce it), or

Repeal the law (assuming it is being broken by a majority who understand but disagree with the law).

Civil disobedience wakes up the state and forces the end game. When you say you are simply going to ignore the law, rather than fight it (by lobbying your congressman, demonstrating, etc), realize that you are voting that the law in unfair and should not be enforced - but if they decide to enforce the law in your particular case, you will be fighting alone. Maybe EFF will help, maybe not - it's up to the activist community to decide whether to help you.

Personally, I will ignore the law in private, and fund organizations like EFF. I'm not sure what recourse a non-American has, or if the DMCA applies, but they were able to bring a foriegner to court over DeCSS, and I imagine it will happen again.

Nicely abstracted

[interiot]

The ACLU/ALA/ARL/MLA/NAIS/EPIC/CCIA brief explains very nicely the levels of indirect liability involved in this case, and the extreme extent that this case is going beyond traditional law.

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

• 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.

That seems pretty kosher. But then DMCA added two more levels of indirection:

• 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.

• 4. Marketing/selling the circumvention devices -- you promote and sell the key.

But then this specific case tries to allege that one further level of indirection should also be illegal:

• 5. URL linking to circumvention devices -- you tell someone where a key is.

when only #1 and #2 are widely considered constitutional.
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These briefs hit hard

[msuzio]

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.

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... :-). 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!").

Re:These briefs hit hard

[theancient1]

The recent essay by John Gilmore is another "required reading". I realized something that isn't entirely obvious from listening to industry execs and so on. The DMCA essentially allows corporations to create new laws on their own.

Under the DMCA, it is illegal to bypass content control systems. That means that if a corporation can come up with a way to remove our rights -- even if those rights are legally protected -- it's illegal for a consumer to do anything about it. For example, we all know that CSS eliminates some of our fair use rights. The DMCA makes it illegal to bypass CSS. Therefore, we have lost our rights by default. SDMI is another example. We have the right to freely copy music for personal use. The RIAA didn't like this, so they created SDMI, and boom! it's illegal to make a copy of my own music.

Big corporations are now in control of the legal system.

You didn't already know that?

[David Gould]

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

Very good stuff

[interiot]

Law Professors I, argument section 1:

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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