Slashdot Mirror
Report From The 2600 Appeal Hearing
Sullivan spoke first. She argued that since the DMCA restricts speech, under the First Amendment the government must narrowly tailor the law to only restrict those specific areas of speech that it is targeting. Furthermore, the government bears the burden of proving that the speech it is restricting is a problem in some way -- usually it does this by holding hearings, getting testimony, etc., in the process of passing a law. She noted that none of this was done for the DMCA, and that the DMCA restricts many areas of speech that cannot constitutionally be restricted.
She also made much of a rather telling fact: there is no piracy attributable to DeCSS whatsoever. Not one traditional copyright infringement has ever been attributed to DeCSS, and the movie studios admitted in the case that they could not produce even one example of an infringement due to DeCSS. (Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required, though that wasn't covered in the hearing.) But Sullivan jumped on this point for all it was worth and then some -- the judges seemed fairly skeptical about accepting it, trying to insist that widepsread and massive copyright infringement due to DeCSS must be occurring, somehow, somewhere. It just must be.
She ran into her first really hard question when she stated that computer programs were expressive, and the judge asked her to explain. Her answer was that programs were beautiful in and of themselves, that they could represent scientific research, that they could be poems, and that they could do things -- their functional nature. I felt the response was lacking. Sullivan managed to work in the recent ruckus over a Princet on scientist unable present his work due to DMCA threats, which was cunning of her. If a Slashdot reader can create a pithy and short explanation for how and why a computer program is expressive speech and/or what it expresses, it might be useful.
Sullivan also argued that under free-speech precedent, if less restrictive alternatives were available to the government and it failed to use them, the law must be overturned. The judge mentioned the Audio Home Recording Act -- the law passed in 1992 which both implemented serial-copy protection in digital audio tapes and explicitly legalized home taping. Sullivan pointed to AHRA's serial copy prevention as an example of a law which restricted copying but which was not as restrictive as the DMCA turned out to be. This argument seemed to be pretty powerful with the judge.
The next point to be discussed concerned the injunction issued by Judge Kaplan, and his written opinion in the case. The Appeals judge made the point that the injunction could not be considered to apply to anyone except the specific defendants -- that is, just because 2600 was enjoined from posting or linking to DeCSS, doesn't mean that anyone else necessarily would. On the other hand, the reasoning applied in the opinion could be assumed to apply to other U.S. citizens wanting to post DeCSS. The gist was that Sullivan couldn't argue her case as if anyone would be enjoined from linking to DeCSS, but only regarding the specific defendants that were.
Finally they got to the idea of "disseminat ion," since the DMCA prohibits dissemination of circumvention devices. What does disseminate mean on the internet? The judge and Sullivan agreed that the New York Times is in the business of disseminating information (the NYT being today's quintessential example of "the press"). The judge asked if the New York Times intends to disseminate all of the information on every page it links to in its online edition. Sullivan said yes. The judge asked if the NYT specifically intends to disseminate every bit of info on every single page that it ever links to -- again Sullivan said yes.
Assistant U.S. Attorney Daniel Alter was up next. He started with a hypothetical: What if someone developed a program that could shut off the navigation system in commercial airplanes? What if someone developed a program that could shut off smoke detectors in public buildings? Surely, he said, the government could ban the publication of programs which were a threat to people's lives. He proceeded with the standard quotable rhetoric: DeCSS is a "digital crowbar." Hey, if you're a reporter covering the case and you don't understand it, at least you got a phrase that jumped out at you screaming to be quoted.
He then got down to the meat of his argument -- that the government can regulate conduct even if there's a speech component to it. He used the example of Giboney V. Empire Storage and Ice Co., a case where picketers (a constitutionally protected activity) were successfully prevented from picketing due to the functional intent of the picketing, which was apparently to violate certain laws relating to restraint of trade. Alter argued that the DeCSS case was similar -- the intent of distributing DeCSS is to promote violations of copyright law, therefore the speech part of such distribution can be ignored by the courts and the courts can focus on regulating actions without concerning themselves about speech issues.
Alter proceeded to postulate that the government has the ability to create and regulate a market in expression, and correct any market flaws that may exist. Viewed from this vantage point, the existence of the Internet and all of those unrestricted personal computers connected to it is one large market flaw which the government has the power to correct. He used the example of must-carry laws for cable systems -- cable television must carry local broadcast channels, and the official reasoning behind that is that otherwise cable systems would drive broadcast television into bankruptcy and the government is preserving a vibrant market in broadcast television through the must-carry laws.
He stated flatly that the problem with digital works is that they can be copied. He argued that the DMCA is actually pro-First Amendment, as a means to promote the market for digital works. So in the calculus of the government attorney, increasing the speech of a dozen movie studios at the cost of decreasing the speech of 260 million citizens is a win for the First Amendment.
The judge asked about the Audio Home Recording Act and serial copying -- why wouldn't the "no serial copies" approach taken to DAT recordings with SCMS under that law represent a less restrictive means for the government to promote copyright in the digital age? The attorney argued, of course, that the DAT law was inapplicable since it predated the massive growth of the Internet -- and this is where he pulled a fast one on the court. Alter stated that, due to the Internet, one only needs a single copy for "catastrophic" infringement, so even that one copy permitted by the Digital Audio Tape serial copy scheme would be too much. One copy, the judge asked? Yes, he said, just one copy and put it on the Internet and ...disaster. Apparently, in the attorney's world, once that lone copy is made, it pretty much automatically puts itself on the Internet with no further acts by any individual. The point Alter narrowly evaded evaded it is that the act of publishing a copyrighted work to the world is a copyright violation in the traditional sense, and is punishable under traditional laws.
So, the judge said, Congress needs a more restrictive technique to prevent copyright infringement because the Internet is now a factor? The DA claimed that it does.
The judge next moved to one of the most interesting questions of the day -- does fair use require access to a work in its original form? That is, one cannot excerpt a digital clip of a CSS-encrypted DVD, but one could point a video camera at the screen and create a clip, albeit of poor quality. Is that sufficient for fair use? This question has disturbing ramifications, depending on who is asking it and how it is answered. It seems odd, at first glance, to insist that one must be able to make fair use of a work in its full, unfettered, most-advanced, highest-quality form. But after thinking about it for a bit, I realized that anything else utterly destroys fair use. What if I could make clips of 256 kilobits/second mp3s, but the clips were at 16 kilobits/second? Would that be sufficient? Is a 16 kilobit/second mp3 even recognizable as music? What if book publishers could designate the Swahili version of a book as the "fair use" version, and completely shut down any quoting from the English version -- ("After all, you can still quote freely from the Swahili version; it may have a few words missing, and it's in Swahili of course, but you can still quote from it.") The judges seemed to be actually considering that filming a DVD movie from the television set or getting some macrovision-corrupted analog output might be sufficient for fair use purposes, and I hope they think it through and reject that idea entirely.
The attorney moved on to linking. He argued that 2600's actions ought to be examined in their entirety; that 2600 was effectively "shuttling" people over to commit a crime by linking to the DeCSS code. According to him, the entire conduct of the defendants should be considered to divine the purpose behind linking to the DeCSS code. If it were for some legitimate purpose, a link would be okay. But if the purpose were to "shuttle" people to commit a crime, that wouldn't be. The number of links would be important, the context would be important, and the intent of the writer would be important to this analysis. Search engines, according to the attorney, would be okay they are just providing lots of links without the harmful intent that the attorney felt was necessary. So apparently something like this:
"This is a scholarly discussion of DeCSS. We are a major media outlet, and would never encourage lawlessness, so this link to DeCSS is okay."
... is fine, while this:
"Hey all you l337 h4x0rz, come get DeCSS and use it to copy movies and watch them automatically distribute themselves via the Internet!"
... is not. How context works, I'm not sure. Certainly the vast majority of 2600's links that it has ever published are not "shuttling" people to copyright infringement -- the vast majority are for the standard journalistic purposes of disseminating information. But somehow under Alter's analysis, 2600 came up lacking while the NYT did not.
The judge cut deep with a hard question: "Can you prosecute a newspaper who publishes a list of stores where obscenity can be purchased?" The parallels to this case should be obvious. The attorney dodged the question with an outstanding answer: "Yes and no." He tried to go back to his theory of looking at the overall conduct of the newspaper, but it was clear that he didn't want to say "Yes, we can prosecute the newspaper for publishing the list of stores" but did want 2600's actions to be covered, and wasn't sure how to reconcile those two desires ... and neither were the judges. I'm not sure they bought his argument.
Finally, Charles Sims, the lawyer for the MPAA.
He had had time to pay attention to the previous efforts and tailor his argument somewhat. He tried to cover weak areas -- insisting, for instance, that no record of harm is required for Congress to regulate pure speech. He brought up the Congressional record (hearings, testimony, etc.) that pre-dated the DMCA, and said it showed "actual harm" to the movie industry.
Actual harm, the judge asked? "Yes. Actual harm," he replied. "Well, actual threat of harm." That got a laugh from the audience, and scored him no points with the judges. He didn't use the "digital crowbar" metaphor, but insisted that publishing DeCSS was like publishing the combination to a bank vault in a newspaper -- something which is not, as far as I know, a violation of any law, though it might well inconvenience the bank.
The judge asked this lawyer too the hard question about less restrictive means to accomplish the same goal and serial copy management. The MPAA's tactic was similar but slightly different than the U.S. Attorney's; the AHRA is inapplicable, he said, because Congress didn't take the Internet into consideration when drafting it. He also argued something that will make him no friends with the RIAA -- that motion pictures deserved more and better protection than music (so the AHRA serial copying wasn't appropriate for movies). After all, he said, motion pictures have never been subject to the sort of fair uses that music has, the copying and so forth. I suppose he doesn't own a VCR. This argument about motion pictures being more deserving than music seemed strangely surreal -- for the first several decades of motion pictures, they had much, much weaker First Amendment protection than other forms of speech because the courts considered them to be solely entertainment, and only an assortment of free-speech challenges to laws restricting them earned them the privilege to stand on a par with other forms of speech in the protection of the First Amendment. Now, the motion picture people are not only arguing that their form of speech is more privileged than others, but they're arguing that still another form of speech, computer programs, ought to be considered in that inferior, functional category that motion pictures worked so hard to escape from. It's a strange world we live in.
The judge asked whether the DMCA created a "permanent" copyright, or an effective extension of copyright. The lawyer smoothly dodged the questions by saying that movie studios could (not "would," but "could") publish works in unencrypted form when (if) their copyright on the work ever expires, or perhaps someone could use a decryption device then, since it would no longer be illegal under the DMCA to do so. The judge asked where those encryption devices would be, after all, they've been banned by the DMCA. The lawyer had faith that they would appear. So apparently: the fact that the studios haven't gotten encrypted content working in an impenetrable fashion yet means that they aren't screwing you out of your access to works when copyright expires.
In closing, the MPAA lawyer compared CSS to one putting a painting in one's living room or charging admission to a movie theater to see a movie. But the right to exclude people from your living room or a movie isn't created by copyright law, it's created by property law -- your home is your home, and you can exclude people from it to your heart's content. The MPAA's conception of property law was that the movies they release are essentially their home, and they have an absolute right to do anything they want with this property until copyright expires. It is a nice sleight of hand to conflate one's right to one's home, perhaps one of the most powerful rights a citizen has, with one's right to control how a movie is viewed is someone else's home. He seemed to be hoping that the one would rub off on the other.
In closing, Sullivan had a brief rebuttal period. Not worth going into; she tried to call the other two lawyers where she thought they went too far astray and she could zap them.
The judges took the case. They also requested one last brief from both sides, due by May 10th, to cover anything that came up at the hearing and the parties think needs to be explained further. I would suggest that it's likely that the people who draft the brief will read this article; and that insightful comments could be of assistance. I think there are a couple of key areas which people may be able to answer:
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
Reader Trinition also points to this brief a ZDNews article on the hearing; the case was well-attended by the press and by people like the members of LXNY, New York's Free-software organization, so there are quite a few personal and press accounts around the Net.
I'll buy this, but I don't see how it is applicable to this case. Bridge building isn't considered a form of speech. When's the last time someone built an unauthorized bridge and called on the First Amendment to defend it?
Here's my problem, if Expressive Speech is more protected than Functional Speech, what exactly is the difference? I've tried looking at it philosophically, and I get "All speech has both Expressive and Functional aspects to it, there is no pure speech". If there is a legal distiction, can someone (preferably a Lawyer, but not necessarily) please elaborate what it is?
Barring that, there are some programs that, in my opinion, just plain qualify as art. For example, in the 15th International Obfuscated C Code Contest, I'd put the programs Glicbawls (bmeyer.c) and TomX.
Glicbawls goes beyond compressing an image, it talks about ongoing research in the field, demonstrating a routine at the heart of the author's research. It has a clean interface which will do the right thing when confronted with a compressed or uncompressed file. It has a visual representation that is small and artistic. It is programming poetry, a statement about beauty.
Tomx is poetry as well, but poetry of a different kind. Rather than showing beauty, it talks of communication; "All language is fundamentally one". This is a truth we learn when learning to program, but we often forget it as we move into the real world from the abstract. TomX brings this truth into the real world for us to hold, touch, play with. It's even maintainable code (unlike most of the IOCCC entries), so it can grow.
Another example of the expressiveness of a program is in the metaphor it uses to interface with the user. Robert J. Sawyer (Author of Calculating God and Flash Fowrward) wrote an excellent article on the design of Wordstar, and how much more joyful it is for him to use, because of the design metaphor, than other designs that perform the same function.
The Museum of Modern Art has an entire department of Architecture and Design devoted to the art of things that many people think of as purely functional. While they do not yet include software, there is no denying that the software process has much in common with Architecture, Engineering and Design, and the same aesthetic and artistic choices get made during the process.
These are just some examples off the top of my head. I'd really like an answer to my first question tho.
----
----
Open mind, insert foot.
For example: Some of the things I discussed involved the use of color and texture, which would probably have been degraded beyond recognition if I were forced to use pictures taken by pointing a camera at my TV.
If I can use parts of a copyrighted work in my own scholarly works, I must be able to use it at full quality. Anything less would not be adequate.
--
A buddhist walks up to a hot dog stand and says ``Make me one with everything.''
In that report I saw no mention of using DeCSS to simply view the movies under Linux where no legal or authorized DVD player existed. The arguments seemed to revolve around copying and distributing content an assumed but not necessarily proven allegation. Using DeCSS to access the media in it's inteneded use, ie. watching the bloody movie, never seems to be mentioned.
The difference between Canada and the USA is that in Canada healthcare is a right and gun ownership is a privilege.
It's been a while, but a couple decades ago the Progressive magazine printed instructions on how to make a nuclear bomb. I don't believe it was found to be at all illegal (there's some reference to the article here).
The Anarchist Cookbook still seems to be easily available -- though maybe that's just because it's a right-wing conspiracy to get dumb anarchists to blow themselves up :)
And, several years ago when I knew someone who was into that sort of thing, books on converting weapons seemed easily available.
To me it seems like DeCSS (and the DMCA) is a radical departure from normal law. (Though I wonder if similar censorship has occurred for manufacturing LSD, etc.?)
Publish it minus the soundtrack perhaps. IIRC, the music in the movie is still copyrighted and therefore you can't distribute the movie with the soundtrack intact. Someone correct me if I'm confused on this.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Publish it minus the soundtrack perhaps. IIRC, the music in the movie is still copyrighted and therefore you can't distribute the movie with the soundtrack intact. Someone correct me if I'm confused on this.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
What ripping and recompressing to DivX achieve is to get the file size down to 1 or 2 CD's where you can burn it on a CD (and more easily download it), which is widespread technology, unlike DVD copiers.
I find it hard to believe that this is any sort of real threat to the MPAA. How many people are going to be willing to tie up their broadband connection for a whole day just to download a movie to watch on their PC when they can usually go rent the movie for 4 bucks or less whenever they want? I just don't see it causing any real harm, certainly not enough harm to justify the kinds of restrictions the MPAA wants.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Can I draw you attention to Donald Knuth's "Art of Computer Programming"- the definitive work on computer algorithms, which was named by Scientific American as one of the seminal works of the 20th Century (see Knuth's Home Page) putting him in the company of Albert Einstein, Russell and Whitehead, von Neumann, and Dirac.
In it he passionate argues that not only do you need source code to intelligably discuss algorithms, but you need *assembly code* (one short step shy of object code). And all of the algorithms are presented in assembly language.
Your slander against 2600 magazine is quite immaterial.
It is not legal to supress the publication of manuals that teach you how to do illegal things.
If it weren't specifically for the DMCA, and the fact that it is the movie industry that is the plaintiff, this case never would have gotten past demure.
A Pirate and a Puritan look the same on a balance sheet.
If computer programs aren't expressive speach, then according to the Copyright office's website, it won't be covered under copyright law. See
Circular 1, which lists Copyrightable works. They don't have a category for compute programs, but make this recommendation:
It goes further by saying that "works that have not been fixed in a tangible form of expression" "are generally not eligible for federal copyright protection".
So, if programs aren't expressive speach, then where does that leave the copyright status of the million of computer programs out there? Is that a Pandora's box that the court wants to open?
Now, I'm not a copyright lawyer, so I'm not sure where or if this is in actual law. If anybody else knows, I'll be interested in hearing.
IMHO, computer code is demonstrably nothing more than a number. (See the various work by Alan Turing. But also think of your computer's memory as a linear stream of bits. That bit pattern can be viewed as one huge integer number.)
Obviously, not all numbers are equal. Most (99.9%) represent nothing of any use. The remainder represent algorithms that are of value.
I don't see the difference between this, and any natural structure. There are many, many more "mathematically-valid" possibilities than there are real ones. An upside-down tree is a valid construct, but it isn't going to happen. At least, not without a lot of assistance.
My argument is that the sculpting of code is much like the sculpting of the landscape, through natural forces. Some sections are eroded, others are extended. Sometimes, "trivial" changes have massive long-term consequences. (Frost-cracking, in nature, can be as devastating as a subtle low-level struct change.)
If you want a more "technical" proof, look no further than Benoit Mandelbrot's "Fractal Geometry of Nature", in which he demonstrates the recursive, self-similar, and non-Euclidian properties of the natural world. Then look at a Jackson Structure Diagram, or an EBNF grammar. You'll quickly spot that the very fact that you CAN draw such diagrams shows that the same recursive, self-similar properties are inherent in code.
The non-Euclidian nature is slightly harder, but can still be demonstrated. Euclidian shapes have N+ dimensions, where N+ is some integer number equal to or greater than zero. Euclidian shapes are also "simply connected". Because code is self-similar, it -cannot- exist in an integer space, because that space would need to be infinitely larger than the space it is enclosed by.
It follows that code has a fractal dimension, except in "trivial" cases. Now, let's throw in the ability to connect any two points, at random. This is most definitely not a "simply connected" space. There's nothing simple about it. A multi-dimensional map of any non-trivial code will show a horribly complex network of one-way paths, remote connections, circular references, etc.
The only logical conclusion is that non-trivial code is fractal and exists in a fractaline space, rather than being an artifact in a simple space.
But does that make it art? ONLY if nature is. If nature is not art, then code cannot be, either. Code and nature are, fundamentally, much more related than code and a bridge. (You don't get to build a Bridge 0.0.1 - patchlevel 101. Bridges are constructs. Get them wrong, the first time, and there won't be a second. You start from scratch, each time, or you don't start at all.)
This is one of the reasons "Software Engineering" has never been successful. Trying to treat a natural entity as if it were an artificial construct is doomed to fail, or at least prove horribly difficult. (Artificial hills exist the world over, though they're usually small and very simple. Ever seen an artificial mountain range?)
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
What this system allows is media-shifting (applicable under the AHRA and the Betamax scenarios) for personal use. Under the AHRA, you can still make custom compilations on digital media to give to your friends.
:) is prevented by the DMCA, but similar actions are allowed by the AHRA. And the MPAA's argument is that new technology development changes the game. Wasn't the same (or a very similar) argument made in the Betamax case?
Indeed. Even now, there are people trying to take analog video recordings that they have acquired and move them to a digital format for preservation. Plus, the (physical) space requirements of a CD/DVD are much less than a VHS tape. In addition, space-shifting MPEG-2 video to MPEG-4 so that you can carry several movies on a single DVD-ROM with you on your extended vacation (which currently would require you to fire up the old video encoding farm, but that's beside the point
--
The Future: Some assembly required; batteries not included.
Similarly, when reading someone else's poetry or a novel, I appreciate and learn new ways to express things in the English language. (Sorry, I'm not very bilingual...) I see someone else's approach to describing a color or feeling or item, etc. As social creatures ('cept when on 24-hour coding binges!), this behavior is inherent to our being.
Another reason to use a full-quality fair-use clip is to accurately discriminate between two different pieces of media. If you could only use a black-and-white copy of a movie for fair-use instances, how could we fairly compare the quality (technical comparison, not content) of "Miracle on 34th Street" and "The Matrix"?
For that matter, if the movie companies go to such great lengths to provide a medium of superior quality, why would they relegate others to show a watered-down version of the product and not be able to "sing the praises" of new technology?
Not sure if this makes any sense, but that's just my thoughts off the top of my head.
I think that there is one unfair point in the government's argumentation: the comparison with the "program that shuts off smoke detectors in public buildings".
It seems like they fail to make the difference between source code and a binary executable program. And then they cannot make any difference between a plan for a bomb and the bomb itself (correct me if I am wrong, I am not a US citizen, but AFAIK posting a plan for a weapon is protected as free speech in the US?). Like the compiler that is between the source and the binary representation there are only some employees and a few salaries between the plan for a bomb and the bomb itself. And in the future, when someone invented a device that reads the plan and builds the bomb automatically, not even that.
In other words, they can either make only the binary illegal and keep the source legal. Or alternatively they must forbid any form of speech that allows the creation of an "illegal device".
I would have insisted much more on the fact that DeCSS can -not- be used for mass duplication
But you would be wrong. Rent DVD, rip DVD, encode to DivX, rename, put "Movie-divx.avi.mp3" on napster. In the worst case, if you have a cable modem, (say, a 320 kb/sec upload speed), and if everyone who downloads from you shares the movie over their cable modem, then after a day ~8 copies of the movie exist, after two days ~64 copies exist...
I think it would have been very good to point out that the encription does not, in any way, prevent pirates from copying software, neither does DeCSS make it any easier.
This is better. Don't point out that DeCSS lets you get a perfect rip a DVD movie... point out that there has been software to perfectly rip DVDs (via automated screen capture type means) for something like a year before DeCSS came out. Point out that the hardcore pirates aren't going to bother decoding the movie at all, but will just make bit-for-bit copies to sell at $5 a pop.
Point out that even if DeCSS is a "digital crowbar" (digital screwdriver might be more accurate), crowbars are not illegal.
Ok. Let's assume for a minute that the programs are not expressive and therefore A) not protected by the 1st amendment, and 2) not able to be copyrighted.
.neat. . .
What effect would this have on the programs that are used by the industry to encrypt and decrypt the movies? Suddenly the programs are no longer under the protection of the DMCA, which means that it's perfectly legal to do things like reverse engineer them! Hey. .
** Martin
The judge handed us the unconstitutional arguement we neeed! Look - DMCA DOES effectively extend copyright on movies to a perpetual status. That is blatantly unconstitutional. The constitution specifically allows copyright for a limited time. Wallah! By other court actions, congress can keep on extending copyright as long as it isn't permanent. This one is pemanent as written!
Have you compiled your kernel today??
Computer programming languages are designed for the rigorous expression of solutions to problems. The nature of the problems so discussed and solved are practically unconstrained. In essence, any domain of human endeavor or interest that is sufficiently well understood (even if only approximately) to be described with the necessary detail may be addressed by a computer program.
Ok, well lets look at this from another perspective. Why does a movie have to be art? What about the garbage that floods my tv all the time that I don't watch because it is pointless, bad attempts at humor that lacks in any real form of imagination? I could see some movies as art, but for every good movie there are 50 crappy ones. I think for programming this is about the same. For every good program there are allot of bad ones. To me my work is just as important as thiers. And if you ask M$ about it they would agree that software (at least thiers) is more valuable than the movies.
What if we took all these major legal battles and threw them together and see what came up. I'm sure that M$ could put up just as many arguments as the movie industry that their software deserves more protection than their movies. Since their movies start in a theater that you cannot get a digital copy from. While thier software is reproducable from day one. Not to mention smaller and easier to transport across the internet.
"Beauty is in the eye of the Beholder" What is art to me might not be art for you. And the reverse is the same. Is my programming art? I think so, but others might not. Does it really matter?
If ignorance is bliss, the world is full of blissful people
Suppose I'm a video artist and I want to rip sections of my DVD to study animation and video techniques. I want to take advantage of the quality and fine control I can get over the frames to study and modify portions of the film as a learning exercise. Perhaps I would like to practice digital editing and post-production techniques?
Watch Citizen Kane, specifically the
childhood scene. There are many details
that were put there in order to show Charlie's
relationship with the three other characters
(while Charlie plays in the yard pretending to
be a Union soldier, his mother opens the
window to hear him, and his father later
closes it to shut the draft). Welles put those
details in to show to which of the two Charlie
was closer.
Try to show these details if you have to
display the movie on a screen and capture
the scene with an analog recorder.
A million bedroom DJ's have got these decks and they're the toughest piece of hardware I've ever encountered - in hunderds of years they'll still work.
;-)
I forget who did it (there was an article in SciAm a few months ago about it), but the artcile was talking about how elegant (scientifically) a solution was to decreasing the amount of material required to build a bridge structurally, and at the same time making it aesthetically pleasing. In fact, the reduction of materials in this case actually made the bridge stronger. Someone seeing old bridge designs, and then new bridge designs might think "Wow, what a beautiful solution to the problem, and it works too!"
I would liken this to some of the evolutionary development that takes place while coding. How many times have you written something that is ugly and gets the job done, but is really inneficient, then later come across another piece of code, or someones reworking of your own code, and thought in awe "I can't believe how much better that is, look at how it steamlines all the processing, etc.". At the same time as the code is being functional (and doing the same thing that yours did) it is expressive in showing an alternative way of doing it that is a more beautful solution (at least to another programmer).
Also, there is definitely something expressive and instructional about having more than one implementation. For example, by comparing the different bridge designs, and analyzing them, someone else might be able to come up with a better design for bridges, or for that matter, for anything structural. (Think of how many developments from NASA have made it into everyday life.)
Has anybody considered contacting Noam Chomski?
As a linguist is he quite distinguished. I imagine he could give quite some explanation as to how much computer languages are speech.
My free speech (making and selling tickets to movies) -VS- Your free speech (writing and distributing software)
Gawd, what a line up:
RIAA AFM AFTRA AFMA ASCAP BMI ASMP AAP BSA DGA
IDSA NATO NCTA NCAA NFL NHL NMPA PGA PPA SBCA
SAG SIAA WGA and Reed Elsevier, Inc.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
IIRC, the original author of DeCSS did not originally intend the code as a means of expression; instead, he whipped up DeCSS in order to watch movies.
The intent of creating a work has absolutely no bearing whatsoever on its expressive content. This is the fatal flaw of your argument.
An example begs. You could write a beautifully enchanting poem with the sole purpose of getting some girl to sleep with you. But your motivation doesn't affect the poem. If the same poem were written to inspire people to donate to charity, it would still be the same poem, and it would still be just a poem. The qualities and characteristics of the poem don't depend on why it was written. It's just a poem - it just expresses something. The author may or may not have intended the poem to have particular expressions, but the author cannot prevent the poem from having expression. Even the null poem has expression. I'm not sure what it is (or isn't), but that's stop it from existing.
Expression just exists in works, it isn't only in works which are created in a certain set of ways. Works are expressive. If you create a work you cannot help but allow it to express something.
Quidquid latine dictum sit, altum viditur.
First, consider a hypothetical. Say somone that messes around with cars
figures out how to make a completely transparent (plexiglass?) carburetor.
They make one and put it on their car. The car runs _exactly_ the
same as it did before. Unless you look at it, you will detect _no_
difference and it will break down just as often, etc, etc. But if you
look under the hood, you'll see this very cool looking thing that this
person put there because he thought it would be a cool thing to do.
That is clearly (in my mind) "expressive" rather than just functional.
He would not make a pink one--why? because of the function? no, because
he would feel that it would be taken as an expression of femininity.
Okay, now let's consider some very old code of mine that I was looking
through the other day. I had a function in it called "start_me_up".
This was a reference to the Stones song. It would have worked just
the same if I had called it "start". No difference in functionality.
No one that ever used the program ("drove the car") would know it was
there. But when you look at the source code you get a little insight into
my personality. It expresses something about what kind of music I like,
and my sense of humor. Furthermore, when I looked at it I thought
"I would probably hesistate to use that function name today because it
might make someone think of the Windows 95 ad campaign". Not because
it would run different. Because of what it would express to someone.
Further examples--when I was working in a language that had problems wth
scope issues, I would use different names for my loop counters (frequently
people use "i" and "j" as loop counter names). If I just wanted functionality,
I would have called them i2, i3, etc. But, just to be funny, i would
use variable names like "eye", "aye", "jay", etc--my intent was that
people would see the variable, and wonder why it was called that
for a split second before they realized that it was pronounced exactly
the same way as "i" or "j".
It amused me when I saw it later. That was the whole point of writing it
the way I did.
Even now that I'm in a more corporate environment, I see plenty
of examples of expressive code. One programmer on my team implemented
some functionality with an array named "f--k_you"--didn't change the
functionality, but it expressed his emotion at how much trouble
implementing that feature had given him. It also nearly got him
fired because the manager thought the expression was directed at
him or other members of the team. Not because of the functionality--
because of what it expressed.
If it has to be clearer than that, we really have no hope in this thing anyway.
--
Liberty uber alles.
I'll suggest a physical-world analogy:
What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form?
A typical, and accepted, fair use is for a review or analysis of an artistic work. For example:
Anyway, that's the way I see it. At least, the way I see it this morning. :) If anyone on the 2600-side wants to make use of these (or similar) analogies, please feel free! (on the other hand, if it's crap, then ignore it. :) )
david.
The distinction between a "functional tool" and "art" is irrelivent. A large number of highly saught after antiques were infact created with the defined use to be a "functional tool". Shaker farm tools for example, while completly "functional" when designed and used. However they are now bought and sold for high dollar amounts to art collectors, museums, and the like.
--
James Michael Keller
"Linux is not our destination, it is simply the open road to tommorow"
The biggest thing to hit in the follow-up brief would be to point out the logical inconsistencies in the DA/MPAA's arguments which Michael so clearly pointed out. The argument about how a DVD that eventually falls into the public domain will be accessed struck me as a particularly powerful one.
... again.
Indeed. There was an article some time ago linked to by slashdot, which described ongoing difficulties with preserving existing data and knowledge as storage media changes. It is a problem libraries, data wharehouses, companies, and even individuals have (how do you play those old 12" records when no more turntables are manufactured, or they have become so specialized and expensive as to be unobtainable by all but the most wealthy?). These problems have arisen without encryption, without any malicious efforts to make the data inaccessible. Quite the contrary, information is being lost over time already. How much worse will this become with the added barriars of encryption, against which even research is being suppressed, quite probably until it is too late.
Another issue touched upon in the article is the dubious notion that studios will make content available in an "unencrypted" form once their copyrights expire. Two facts point out the absurdity of this notion: (1) The movie studios have been aggressively extending copyrights in order to keep copyrighted material (including such icons of western culture as "Mickey Mouse") out of the public domain (cf. Sonny Bono Copyright Act) and (2) The studios have a history of destroying films once their copyrights have expired, rather than release the material into the public domain as their social contract, per the constitution, requires. Taken together these two facts, along with the DMCA, clearly shows the ugly situation we have gotten ourselves into, where historians, librarians, and other preservers of information are legally banned from doing their work until the material they wish to preserve has become inaccessible due to encryption which cannot legally be circumvented, and for which research is actively suppressed through legal thuggary, or has been destroyed altogether. The result? It is very likely that almost no cultural heritage from our time will be handed down to our grandchildren, except perhaps as a proprietary, commercial work for which the copyright has been extended to an even more outrageous duration
The Future of Human Evolution: Autonomy
The old copyright law required the publisher to send two copies of the work to the Library of Congress. This ensured that the work was available to researchers and the public in later years, even if the work was out of print, and the author and publisher no longer existed.
Mea navis aericumbens anguillis abundat
If the DCMA is a law, then a serial killer takes his files of his crimes and locations of his victims encrypts this data, under the DCMA it is illegal to break the encryption to view the contents or to have the tools to break them. I say this because in the USA no law can be made that applies to some but not the other. Laws passed MUST be abided by all citizens. The govt and police cannot violate that law. (Note, I know better, the govt and police violate every law they can, but this is time for courtspeak)
if the DCMA is upheld in it's current form it protects criminals, organized crime, and the subversive while having no useful purpose outside of criminal activity. A crowbar is useful construction or demolition tool, it just happens to be able to be used in a harmful manner. Same for DeCSS, it was created as a legitimate useful tool.
The DCMA is harmful no matter how it is used. I would like to see ONE example of how the DCMA protects the citizens of the United States.
Is this helpful? or am I just full of rancid gas.
Do not look at laser with remaining good eye.
For many things, the MPAA is right: you don't need all the bits to get fair use. If you just want to make reference to the overall image in some way, for instance, you could just make a cheap VCR recording.
But some uses do need all the bits.
Someone already mentioned creating histograms as one way of analyzing what is going on, onscreen. My thesis might be that in "Bladerunner", the average number of black pixels is higher than any other the other 5 most popular films that year.
Another case you would need the bits for, is steganography. What if I assert that the front page picture in the NYT is actually being used as a secret method to contact agents in another country, or even aliens? You certainly cannot prove anything about that picture one way or another without the exact bits.
Another possible example would be to analyze media for subliminal content. I claim that there are secret pro-smoking images in "Traffic", perhaps flashed up for only one frame. They might not be caught if I digitized from a TV screen.
And who knows what uses might be thought of in the future? For instance, with computer analysis you might be able to tell which scenes of "Titanic" were filmed in what order, by analyzing the amount of weathering on the sets. If this is possible at all, it is clear that you need as much information as possible.
Incidentally (or perhaps not), the issue of "all the bits" relates to code expressiveness. It is true that for the great majority of uses, all you need is the compiled version of code -- the "boiled down bits". But code is not just about running machines; it is about communicating stuff -- primarily algorithms -- to other humans. For that, you need all the bits.
The issue of fair use is not about the most common or expected use of an item. It is about all the other uses: the improbable, unexpected, low incidence ones. The ones that might not even be possible or thought of now, but which might happen in the future.
A suggestion for question number one, source code (thus a computer program) can be construed as free speech because it is an extension of the programmers' desires for how things ought to function. I think this might be limited on a technicality only to code which a programmer writes himself which means binary code compiled by a compiler doesn't work but source code for something does. Not only are you expressing personal desires in the source code, you're also commenting it and making up variable names. By blocking the ability to publish said source code you're being denied the right to espress the ideas contained in comments and variable names. Key point, source code is expression because it is a personal literary work while at the same time containing computer instructions, the ability to censor this expression is dangerous because it would give companies arbitrary control over what an individual can and cannot write.
As for problem number two I can only suggest that the MPAA considering a DVD their "home" is complete bumkiss. They own the bytes but I own the physical bits. If I make a representation for my use (it is perfectly legal to draw a picture of a copyrighted work as long as you don't try passing it off as your own) that should fall within the boundries of the law. There are lots of reasons to have unfettered access to the video and audio content of a movie. Say I want to start a homebrew project making mosaics out of frames from movies. With the DMCA and such I'm restricted as to what art forms I can create if they involve using footage from a movie. Same goes for any other art relating to use of movie frames or sound clips. I don't think the court is going to let the MPAA dictate what my next art project is going to look or sound like.
I'm a loner Dottie, a Rebel.
To make a Fair Use copy of a DVD film, I am told I can easily buy/rent a VHS version of the film and exercise my rights without problem.
There are a few fundamental flaws to this proposition:
1) The content I want to use must be available on VHS format. This is not always possible since many DVD's contain extra scenes/footage not included elsewhere.
2) I must buy/rent the necessary player for the VHS version, if it does exist.
3) I must buy/rent the necessary conversion device(s) to get the VHS content onto my PC - assuming my presentation is being conducted from my notebook computer (which would be true for me).
4) I must buy/rent the VHS formatted version, if it exists.
These four points create an excessive burden and cost to me. The Fair Use provisions of Copyright law allow me to use the item I purchase - a DVD in a permissible manner. It does NOT require me to purchase or rent additional items in order to exercise my rights with a lower quality version of my original purchase.
To rule otherwise is a gross perversion of both the intent and letter of the Fair Use provision.
I AM, therefore I THINK!
I thought this was interesting:
I don't understand how this squares with other court cases which have argued that this is a prior restraint on free speech. After the DeCSS case, anyone interested in publishing cryptographic research about a particular protection scheme (like Prof. Felten, for example) will be thinking twice about that publication. This doesn't seem right to me, I hope Ms. Sullivan hit that point hard.
The biggest thing to hit in the follow-up brief would be to point out the logical inconsistencies in the DA/MPAA's arguments which Michael so clearly pointed out. The argument about how a DVD that eventually falls into the public domain will be accessed struck me as a particularly powerful one.
Caution: contents may be quarrelsome and meticulous!
Your right to not believe: Americans United for Separation of Church and
I'm not sure where the idea came from that aesthetic quality is the measure of constitutionally protected speech. Whether or not code is or can be beautiful is not at issue. All that matters is that, in addition to providing instructions for a machine, it can (and does) function as a means of communication . If source code were not intended to communicate it would not contain comments or use actual words (e.g., if, until, include, etc.).
I would think those who claim source code does not constitute protected speech have the difficult case to make. Unfortunately, most people (including judges) don't understand the difference between code and software. In essence, they argue that software doesn't constitute speech (and I don't really have an opinion on that one way or another) without really knowing what source code is.
Would people argue that sheet music is not speech? After all, it's just a set of instructions most people don't understand.
Another situation I just thought of where uncorrupted data is required: reviews. Imagine this hypothetic review:
Naturally, such a review is only possible unless the clip that it mentions, is of the highest possible quality.---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Nice example, hope you get modded up. Constraints (a 5k limit, desire for obfuscation in a C contest, the pre-ordained meter of poetry, the 2D limit of a canvas, etc) are what makes an artist to make value choices of his own that go behind mere engineering and statement of fact. Seriously into art territory, there.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I don't think this would be a good specific example to bring before judges, but hopefully it will trigger someone else's memory of something like it that they have done, which would more .. uh .. presentable.
Basically, the specifics were very childish. I'm almost too embarrassed to mention it, but I guess freedom's at stake, so...
In an accounting program that I've been working with since the 80s, there's the concept of "joint checks". The word "joint" in the English language happens to be overloaded and means something else that is completely unrelated to the concept of joint checking accounts. Because of this, in a little section of code, I^H a certain bored programmer chose to use variable names that referenced pot smokers, and one variable name that is a reference to .. um .. a public figure. The code, in addition to performing
a purely functional action, contains double-entedres that expresses
an opinion of that public figure's mental capacity. That's expression. (It's
also probably slander, so I won't go into the details.)
But the basic principle is this: source code can "say" something that is orthogonal to the actual function of the code. For example, you could take the DeCSS code, and change the variable names so that, for example, you have an assignment statement that says this:
or And I don't see how anyone could argue that the code is merely functional and not expression as well.---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
For some horrible/great examples of expressive code, check out the entries in any obfuscated C contest. What does it express? It expresses how damned perverted a human mind can be!
(I'll try to think of some others over the course of the day.)
A fair use example that requires exact duplicate? Very easy: discussions of compression technology. "Look at the (lack of) visible compression artifacts in this MPEG2-encoded high-motion scene in Robocop, and compare it to how horrible the same scene encoded with MPEG4 looks." You can't do such a comparison without the MPEG2 data.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I really must differ. Every piece of code written is expressive. Some well, some not so well. Writing code is a bit different from writing free verse, but.. The reason is that you must satisfy not only the purpose and intent of the creator, but also the strictures of the compiler and the desires of the intended audience.
Merely saying that the code compiles is only satisfying the strictures of the compiler. It says nothing about the desires of either the creator or the audience.
The audience will have a desire for the shape and interaction modes of the final form (executing in a computer, usually). This is a combination of an esthetic experience (consider the term "eye candy"), and a utilitarian experience (I'm not sure about games... they might be pure esthetic).
The creator will have desires relating to the clarity of the code, it's esthetic balence, the flow of purpose through the structure of the code. This is different for different programmers, which is one of the reasons that multiple computer languages exist. Think of them as partially similar to the differing poetic forms. Some tightly structured. Some rather looser. Perhaps APL could be compared to Haiku? I suppose that Eiffel could be compared to rhymed iambic pentameter of form abba bccb (though that feels like a looser metaphor). C is rather like prose (though the use of pointers is an impediment in this analogy). etc.
Now the point of this is that the differing poetic forms have a differing feel when you read them, and so do the differing chunks of code. Ada does not feel like Eiffel, though they are quite similar. Eiffel feels sparse, Apollonian. Ada feels dense, encompassing. Smalltalk feels self-contained, introspective. Python feels convoluted. Fortran feels plain, and straightforward, but rather prim (well, I don't have experience with Fortran 95, this is Fortran IV that I'm talking about).
This is somewhat similar to the way that heroic couplets are not blank verse are not sonnets. And here, remember, I am talking about the creator's point of view. The end user probably won't be aware of this aspect at all. Even where there is a scripting language it's likely to not be the core language of the application.
The user is aware of the liveliness or dullness of the response. Of the crispness of the presentation. The the elegance of the expression. And of the clarity of the communitcation. (This is especially noticable with error messages, but exists throughout the user interface.)
Caution: Now approaching the (technological) singularity.
I think we've pushed this "anyone can grow up to be president" thing too far.
--
send all spam to theotherwhitemeat@ropine.com
What makes piece of text, say describing how a bear throws sticks into a river from a little bridge and runs to the other side to see if his stick was the first to arrive, expressive? It is expressive because there are millions of ways to describe his action, from very detailed ones describing even the length of the stick, to a short one as the one I wrote here, to one describing his inner feeelings about the action. A pice of computer code is in the same way expressive, since there are millions of codes that describe the same thing, and the choice of how to write the code is just a question of personal likes and estheatics. I will exemplify with the code to calculate the faculty of a number, written twice in the same programming language (Scheme):
(define (faculty x)
(if (= x 0)
1
(* x (faculty (- x 1)))))
and
(define (faculty x)
(define (faculty current x)
(if (= x 0)
current
(faculty (* current x) (- x 1))))
(faculty 1 x))
--The knowledge that you are an idiot, is what distinguishes you from one.
Consider also the case of code in the classroom. Last fall in an algorithms class, my professor wrote, over the course of two and a half months, probably about a dozen and a half algorithms on the blackboard in C. Anyone in the class could have gone to the lab and copied those algorithms into an actual source file and compiled them, but that wasn't the point. The point was that the professor could point to the code and say, "This is Dijkstra's algorithm. Here's what it does and how it works..." Suppose the professor had bundled these algorithms up into a file that students could download (he might have, I don't remember). The purpose of this downloadable file is to express the algorithms to the students, not to provide them for use in programs (although that would be possible). The Princeton SDMI papers are a fine example of this sort of disemination. The papers are obviously written for the legitimate purposes of academic research and study, but the RIAA has sought their censorship because those papers expose chinks in their SDMI armor. In the same way, the DeCSS program, and particularly its siblings written in Perl, exist, and are diseminated for legitimate purposes. The DeCSS program proper is incredibly cumbersome to actually use. It's primary "function" is to express in no uncertain terms the method by which a DVD disc can be decrypted. The Perl programs that reimplement DeCSS serve an altogether different purpose... two actually. One is that they are designed specifically to be the smallest possible implementations of DeCSS. Two, they are written in protest of the DMCA, accomplished by making their disemination (on T-shirts, mugs, e-mail signatures, and such) as trivial as possible by making the code small. The Perl programs could be used to actually decrypt DVDs as well, just like the DeCSS program proper, but they too are incredibly difficult to use. If at all possible, I suggest that the court should ask the MPAA lawyers to demonstrate, themselves, how DeCSS can be used to make a playable, unencrypted copy of a CSS encrypted movie.
As a result of the DeCSS program, it is now possible for DVD owners and renters to make fair use of their content. I own four DVDs. Without the DeCSS program, libcss would never have been written, and without libcss, no open source DVD player for Linux would exist. In a very clear chain of reasoning, the DeCSS program has served the purpose of expressing the decryption algorithm, allowing programmers to write libcss. The existence of libcss has allowed other programmers to write DVD player software for Linux. The existence of DVD player software for Linux has made it possible for me to watch DVDs, and therefore, practical for me to own them. Note that using this chain of reasoning, it is also plain to see that the MPAA has actually made money (from me, and people in the same situation as me) that they would not have otherwise, on account of the existence of DeCSS.
I like to play children's songs in minor keys.
"We're all sons of bitches now." --J. Robert Oppenheimer
The first stage was the trial court with Judge Kaplan where questions of fact and the trial court's interpretation of the law were set down in the first ruling.
This was the first appeal from that trial court. The Court of Appeals reconsiders the legal arguments while using the factual record established in the trial court. Thus you see references to the MPAA not being able to demonstrate a single instance of copyright violation due to DeCSS -- a stipulation that the MPAA made during the trial.
From here there are several different paths. If the Court of Appeals upholds Kaplan's runling, there's no where else to go but up. An "en banc" hearing before the full Court of Appeals could be requested. (This hearing was in front of only three of the 10 or so Court of Appeals justices in the 2nd District.) This is more likely if the ruling is a split decision 2 to 1 with a stron dissent. The only other place to appeal to is the Unites States Supreme Court which could decide to hear or not to hear the case. We're probably not going to see a SC hearing before late 2002.
This court could rule and issue an opinion remanding the case to the trial court to consider some question that wasn't addressed or for the trial court to consider the law in a different way. So it's possible for the case to bounce around the different layers of the court system a few times. Eventually, it will bubble up a last time to the Court of Appeals and become a candidate for the Supreme Court.
It looks like this case is destined for the SC because of the deep constitutional issues involved. Copyright, first amendment, a first impression DCMA case, there's lots of reasons why the SC would be interested.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
Obvious. A class teaching techniques in moviemaking, effectmaking and so forth would need the grapical _details_ of a scene in the most perfect form. If its not in the most perfect form, the class would be moot.
Also, should a teacher be _required_ to own something as unlikely to own as a videocamera? I don't own one. I don't know anybody that owns one. You require everybody to buy something they wouldn't normally have.
Also, at the moment most people have VHS machines, lots hav DVD. But, how many do you know that has an LP player? I don't. All my friends have CD players - and I don't know anybody with an LP one.
In 10 years, who will have VHS casettes? Only very few people. In other words, you will need _special equipment_ to be able to make use of fair use.
--
"Rune Kristian Viken" - http://www.nwo.no - arca
I doubt you'll find any law that says it's illegal to take apart a clock and figure out how it works. Or a padlock. Or a nuclear bomb if you happen to have one. But the DMCA magically blesses DVDs (ok not explicitly - but who's kidding who?) and says you are not allowed to figure out how they work.
But I guess these protections are necessary. After all, remember when people figure out how CDs worked and the entire music industry was destroyed? Scary.
Anything subject to fair use laws is likely to be multi-faceted. If I'm studying a first-edition Faulkner, I may solely be interested in the text of the work -- but I'm just as likely to be interested in the typography, illustrations, binding, paper quality, etc.
Same thing with a movie. I may just be interested in the screenplay -- but it's more likely that I'll want to study (or present for study) the cinematography, art design, costuming, sound effects, small facial expressions of the actors, and other details that could easily get lost or blurred in a lesser copy.
The point here is that while such programs may be able to put people's lives in danger, they aren't illegal, nor is it illegal to write, or try to write one. Virii exist which can bring (windows) systems to their knees, but they are still written, traded freely, and it's LEGAL. What is illegal is the USE of such programs for malicious intent. If I want to write virii and try to hack my own computers all day long, no one may complain, but as soon as I try to hack another computer (without permission), or loose my virii upon an unsuspecting soul, then I have comiited a crime. Similarly, writing, musing over, learning from deCSS or other decrypters should be legal, and only using them to make and distribute (illegally) copies should be illegal. DeCSS is a digital crowbar, only arrest the guy if he's using it to break in to a car.
-Tannin Kal
If one is committing a crime with DeCSS, then the penalty should be a bit stiffer.
Why?
What is it about DeCSS that makes it a worse crime than without? Is copyright infringement somehow "worse" using DeCSS over some other program that decrypts DVDs?
If you commit copyright infringement, whatever the tool used, you should suffer the penalties for copyright infringement. Let's not pretend that one set of tools used in a crime are any better or worse than another set.
--
Copyright law is intended to protect forms of expressive speech.
Computer programs can be copyrighted (even in executable binary form).
Therefore it would seem reasonable to assume that the law treats computer programs are a form of expressive speech.
(OK, I know this is a simplified argument, but I would have thought there must be some mileage to be made in this argument).
First, I should point out that I have a reasonable grounding in law, and have been a professional programmer for about six years. I have never practiced law (and as such am not qualified to give legal advice without risk of prosecution =), but I can offer opinion, and lots of it. Oh, and I'm not American, though I do have a great deal of interest in this case and have been examining the legal aspects extremely closely. It seems that as far as technology-related legislature goes, wherever the US leads, the UK follows with a smile and very little consideration.
When I examine code, it is far more than an outline of functionality. The manner in which the code is written tells me a great deal about the level of expertise of the coder, their mindset as they were writing the code, and their artistic flair. As with any language, it is possible to express solutions in a wildly different range of manners. Code can be sloppy, full of errors, and confusing, and can evoke many of the same feelings as examining the scrawl of a young child. Code can be neat, elegant, and thought-provoking, encouraging the reader to examine their own coding style, inspiring the same sense of awe that a well-written doctoral thesis can.
It's true to say that the majority of people will not share my feelings about the expressive nature of computer code. Very few of these people will be coders themselves. There are many langauges that are spoken by only a handful of people scattered across the world. To me, lack of comprehension of these languages means that I cannot enjoy the diversity of expression that they allow others, but this does not mean that their expressive nature is reduced. It is my failing, not that of the language.
Further, an anecdotal example. Several years ago I moved to Paris, unable to speak a single word of the language. The people that I worked with spoke only rudimentary English, and the majority of communication in the first several weeks consisted of a shared understanding of code and code-related humour. (Interestingly, computer humour seems to translate far better than most humour which is dependent of local social context.)
Unfortunately, despite having a reasonable education in law (especially that abstract and often abused area dubbed "intellectual property"), my specific knowledge of American law is not yet advanced enough to be able to comment on the specifics of this case. As the US consitution applies to this case, and directly the manner in which computer code can be regarded as speech, some observations of precedent can be applied:
From Ynigue z v. Arizonans for Official English, the court said that "Language is by definition speech, and the regulation of any language is the regulation of speech" and that "...the choice to use a given language may often simply be based on a pragmatic desire to convey information to someone so that they may understand it." Computer code (in all of its various forms) is considered language by its practioners.
In Ward v. Rock Against Racism, the Court said "music, as a form of expression and communication, is protected under the First Amendment." It can be argued that, although music has far more wide-ranging expressive appeal, the ability to communicate information of great complexity is not one of its attributes. Computer code allows both of these apsects.
In United States v. The Progressive, the functional aspects of technical information in the Progressive magazine article about hydrogen weapons were considered speech. It is not the intent behind that publication, nor applications for which such information could be used (all of which would be considered illegal should they be exercised) that influenced the decision, but the fact that scientific knowledge is speech irrespective of its potential applications.
Perhaps the most relevant is Bernstein v. US Department of State, in which Judge Patel stated that computer code is expressive speech, protected by the first amendment. In this case, the Department of state was denied the ability to prevent Bernstein posting an encryption program on the internet.
Finally, I particularly loved this quote that I turned up during some preliminary research. It seems to me that the MPAA have an irrational fear that a simple computer program will allow the rampant destruction of te very industry that they exist to protect. A fact that the existence of deCSS has proven to be false: "Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears." - Supreme Court Justice Louis D. Brandeis, dissenting Gitlow v. People of State of New York, 268 U.S. 652 (1925)
this is slightly off. The copyrighted _works_, the movies, are definitely speech. It's DeCSS, the _program_, that is in question. Also recall that the previous judge drew an analogy with political assassination, which, while expression, is too dangerous to allow. He decided that yes, decss was expression, but the possible future harm to corporate profits was too big a price to pay for that expression.
Why and how is a computer program expressive speech? What does it express?
I don't see this as a hard question. Computer code that I write expresses my ideas, my understandings, my envisioning of how things (should) work. When I design a system, oftentimes it's easier to think in computer code than in "normal" words.
For a simple example, consider the Tower of Hanoi puzzle solution, expressed in Lisp. It's not really about telling computer to move things around. It's about the ideas of recursion and problem-solving, very elegantly expressed. This piece of code is about an idea, not about telling a computer how to do things.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
So 2600 can't link to DeCSS because they're l33t hax0rs. However, the New York Times can link to DeCSS because their legitimate reporters.
.... 5 - doubts the word of government. Shoot on sight.) and apply them to everybody.
What if 2600 linked to the New York Times article?
To hell with linking to NYT. There is a huge underlying assumption here: that people disapproved by mainstream (e.g. 2600) have less rights than people approved by mainstream (e.g. NYT). This, obviously, doesn't look like a sustainable position, at least if you state it openly. However, veiling it in language of 'intent' seems to be OK.
If someone is going to claim that 133t hax0rs cannot legally do anything NYT can do, I would like to ask that person to submit a system of ratings (e.g. 1 - highly patriotic. Jumps when told to jump, even from tall buildings;
"Hey, citizen class 4! You are not allowed to look there!"
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
Public perception of hackers needs to be addressed as well as unfiying the rights of people and seeing past public opinion.
You don't get the point. The solution to the problem is not to make hax0rs acceptable. The solution is to make sure that all people, regardless of whether the majority thinks they are wackos or upstanding citizens, have the same rights.
It's a legal issue: separating people into having-legal-meaning classes. For example if you were convicted of felony, you cannot buy a gun -- you rights are different from those of "normal" people.
The arguments at the trial came very close to claiming that suspicious malcontents (hax0rs or not) have less rights that Joe Sixpacks. And that is what caused my hackles to rise.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
For examples of this, go to the International Obfuscated C Code Contest. Programs there use the formal code itself as expression -- programs are ranked according to a quality of ``obfuscation'' not unlike how very dense poetry or prose is valued. ``I have seen them riding seaward on the waves, combing the white hair of the waves blown back when the wind blows the water white and black'' is valued for its complexity of meaning, its sound, and its manipulation of the english language. The code in the IOCCC is valued for similar eloquence.
-------
"Whatever happened to fair use?"
-- Duff-Man
Let me get this straight. They're claiming that the press could be allowed to link to DeCSS while 2600 can't. HELLO, 2600 is the press - their primary business is publishing a magazine.
Are we getting to the point where the government and big business get to decide what is or isn't a "legitimate" press organization? Say goodbye to freedom of the press, folks.
Meldroc, Waster of Electrons
The speech-as-expression issue was AFAIK best handled in one of the Amicus briefs in the Bernstein crypto export case. Can't figure out which one just now, but IIRC the documentation on this point was extensive.
Personally, I'm somewhat boggled at the idea that anyone wouldn't consider code to be expressive. Think for a moment about how we express ideas in logic. We often say things like "if 'A' and 'B' are both true..." which is just a kind of logical shorthand. If you study logic formally, you will certainly see this kind of thing taken even further, with the use of logical symbols and so forth.
No one could argue that these things aren't expressive. Symbolic logic is expression at it's most basic and streamlined. It expresses the validity (or lack thereof) of certain propositions, which is indisputably communication.
And what is programming but symbolic logic which has been extended to involve the way certain machines work? As much as programming is functional (i.e. getting the machine to do what you want it to), it is also communicative (i.e., getting other humans to understand what you want the machine to do).
It seems to me that what we see in the MPAA version of things is a real bias towards a viewpoint of the world based in the humanities. The idea here is that "speech" (speech worthy of protection, anyway), is something that expresses "ideas", and "ideas" are something that are culturally or emotionally "meaningful" to people. Mere "how-to" sorts of instructions are less worthy in this scenario.
Of course, it doesn't take much to see where this idea falls apart. Our entire technological world is based on such "how-to" ideas. And even more! What if banks tried to ban aritmetic as an intrusion on their intellectual property? To anyone who has a solid grounding in math, science, or engineering, the idea that logic is a lesser form of expression is absurd.
Unfortunately, movie and record producers, as well as lawyers, judges and politicians tend to come from a humanities background. While they (especially lawyers) may pay lip service to logic, their actual method is in the interpretation of old laws and cases, and in emotional appeals to juries and the public, not in the creation of functioning logical systems.
---Joe Merlino gnupg public key ID: 1E91EBAF
Except in some extremely simplified cases, when asking two programmers to create a program from the same requirements, the two programs will not be identical. The programs may even follow the same logic, but at least the variable names used, exact functions used, etc will vary.
Can anyone think of an area of expression where more than one person would create the exact same results (without seeing the results of another work?) On the other hand, things that are not expressive are duplicatable (follow a logical process). This seems to be a good argument that programming should be considered in the same vein as art or literature, and is expressive.
DeCSS is not like publishing a safe combination. Safecrackers aren't interested in making several hundred copies of the safe, they just want illegitimate access to the content of the safe. DeCSS doesn't allow pirates to mass duplicate DVD's, it just allow legitimate access to the content of the DVD.
The problem is that the "safe combination" analogy is great. It's colorful. It paints the picture in clear black and white. Everyone can relate to it. I expect that if the decision goes against 2600, there will be a snippet in the decision that will reference it. 2600 should knock that analogy down with a tank, if it can. Even if all the other arguments go their way, the judge will be sitting there deciding how to decide and come back to "Despite everything, I don't want 2600 publishing safe combination". It they don't kill the analogy, the judge might decide the case based on the ignorance of a faulty analogy.
It'd be like using Windows to run the ISS.
-sk
A player that saves clips of some movies for use in "bookmarking" scenes - you can go through a list of booksmarks in a jukebox DVD player, view a page of clips, and select what you want to watch.
Being able to digitally transmit a DVD from a player in your living room to a monitor in your bedroom.
Writing out some scenes from movies to a mini DVD format (or even perhaps some sort of digital tape) to keep kids occupied in the back of your car.
Being able to watch all of the special features passivley in a single viewing session instead of going through the menu structure to see each piece.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
I suspect you meant "smarter than a non-tool-using stupid burglar". Placing "burglar" and a component of a building-securing device in competition is an expected activity...for a burglar. Not that any burglar is smarter than a doorknob, but many burglars do bypass door locks in some way.
How about the "Obfuscated C Contest" entries? Some are expressive in creative ways. Some are expressive in the representation of their code, some are more expressive in their results, some in both.
It would also fulfill the question of "When do you need access to a Full copy of the original Digital media".
Answer: When you wish to view that Digital media on a Digital platform that the original authors of the media do not directly support.
If I want to view a DVD on my laptop (running Linux), then I would need access to a full Digital copy(among other things).
At the Linux World Expo in NY one company was showing Ipaq handhelds with an IBM microdrive, running a movie. It could just as easily have been a copy of a DVD that was placed on there, and that I decided to watch durring my comute home (or during a flight).
This space for rent. All reasonable inquiries will be entertained at proprietors discretion.
> 2. What examples of fair uses absolutely require > access to the work in its most modern, digital, > uncorrupted,
> un-macrovisioned form? The only one
> that jumped out at me is making a backup copy in
> case the original is
> destroyed. But perhaps there are others
video beamers don't work with macrovision enabled.
It is impossible to seperate functional and expressive in all forms of communication.
Instructions on how to perform a task, be it setting up a stereo, or computer code in any form, are as expressive as the author intended it to be. A program that generates art (like a screen saver) expresses and conveys something to the audience in a manner that the programmer/artist intended. There is the continuum of emotion on one end, and functionality on the other, and all communication falls somewhere between the two extremes -- and never quite reaches either extreme.
Computer code is a merely another language. If I tell a joke in a foreign language, who gets the joke depends upon how well they understand that language. What the language is (Swahili, C, Python, Urdu) does not change the logical outcome. Someone who does not understand the language may not get the joke, but even without understanding the language, they can tell that something was conveyed; that something was expressed.
Thus it is speech, and thus it is protected.
Example first, rambling later:
Mathematics: Can you imagine what would have happened to mathematics if all these laws were applied to theorems? I mean, a theorem is a honest-to-God work of art, it took a long time for the scientist to figure it out, it can be copied digitally (i.e. you can make a copy indistinguishable from the original) and because others can make derivative works from it and access it in the original form, new theorems are created, and humanity's knowledge advances. What if you couldn't access a theorem or its proof in its original form, but just to take a picture of it from a grainy TV screen or something? What if that 2.1234 becomes 2.1235? Some could argue that if you alter a movie a little bit by taping it, people would still get the idea, well, you would still get the idea from the photographed theorem, but you wouldn't be able to appreciate it as much, since you wouldn't be able to follow the proof, or maybe even read what the heck the theorem is all about
Well this is hard, one could try to say that if you are studying something, you need the whole thing, whether it's a musical score (you need all the notes) a painting (that's why scholars travel to museums, pictures are not enough) etc.
In general, to seriously criticize or analyze a work, you need to see/hear the work as the artist intended you to and any reproduction of this work is an approximation that prevents you from actually studying the work.
Now, the problem is that in the old days art objects were unique, there was no way that you could copy an autograph score, a picture, a statue and create an indistinguishable one.
Nowadays, instead, you can create as many copies of a digital work as you want: in a way this is bad, since copying is possible, but in another way this is good, since the number of people that can have access to the original, unadulterated work of art, is practically unlimited.
Imagine if you could do a 1:1 copy of the 'Mona Lisa', nobody would have to travel all the way to the Louvre to study it, you would just buy one of these master copies stick it in your living room and enjoy it to your heart's content. If you wanted to quote it in a study of yours, you could quote part of the original.
Fast forward to now, imagine that an artist comes up with a digital piece of art (this is not that far fetched, even a movie is art) if you have access to the original digital material, you can do all sorts of things that you can't do with an analog copy.
If I am studying a movie and I have the digital signal, I can run it through some programs to figure out, say, the histograms of the light distribution in a particular scene, I can calculate the color bias of a frame as a whole, all things I couldn't do if I taped it from a TV.
Now, people could argue that the DVD is not the original product of the artist, the movie reel is, but since it comes from the same studio, it is an approved product, and constitutes art in and of itself. In any case, a private citizen wouldn't be able to have access to the movie reel at all.
You see where I am going, nowadays, with the digital availability of content, we could usher a new era in which access to art in its original form is not anymore a privilege of the few, but something that anybody can enjoy. The DMCA seems to want to limit this newfound freedom by constraining people to use this art only in approved ways.
Personally I believe that everything is art, anything that is the product of human intelligence and creativity is art, whether it's a movie, a painting, an ad campaign, a piece of code, a house, a three year old's drawing, an interior decorator's colour plan, and I can't see why some people's art must be protected more than others' (besides, of course, to protect some pre-existing acquired interests).
I am not advocating a free-for-all world, unfortunately many people, if given the choice, will freeload instead of buying things, but there must be a better way to protect the artist's interests while at the same time preserving the art consumer's interests as well.
-- the cake is a lie
2. we can say programs aloud.
3. programs express instructions to perform some task, similar to any how-to book or cookbook.
4. a community (computer scientists) uses programs to communicate and disseminate ideas.
I'm glad I was smart enough to think of these reasons :). This should be a no-brainer.
We write SOURCE code for HUMANS, not computers so this source must be expressing something extra to a person which the raw binary file does not encode, otherwise what is the point?
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
Let's say a scientist is examining artifacts in audio or video data -- something like the ringing around pure tones in MP3s. He finds an artifact of interest in a data file. That artifact may not be detectable -- and certainly will not be worth studying -- at a lower resolution or in an analog representation. The scientist must be able to use and publish portions of the original work at full fidelity.
Similarly, reviewers of music or video may require full fidelity. "Listen to this clip -- you can hear all the fretwork in Framton's latest song!"
Genocide Man -- Life is funny. Death is funnier. Mass murder can be hilarious.
So much for source code in general. As for the expressiveness of deCSS in particular, if the deCSS code is inspected, even a layman will be able to see that the code is indented in blocks, so that its operation is made clearer to the reader. This indentation has no functional significance whatsoever: its purpose is entirely expressive. Furthermore both the CSS algorithm and deCSS itself are a proper subject of study by anyone wishing to learn more about encryption: the flaws of CSS provide an excellent case study of the pitfalls in designing an encryption algorithm.
It has been suggested that the First Amendment purposes could be served if distribution of deCSS was restricted to those engaged in "good faith" encryption research. Computer science does not work like this. It is an area where unknown amateurs can and do make significant advances. See for example this BBC story about an encryption algorithm developed by a 16 year old girl. To restrict information about encryption to a self-selected elite of computer scientists would not further the purposes of the First Amendment, it would frustrate them. This theory suggests that anyone providing deCSS source code to anyone else must first establish their good faith, or else become vicariously liable for their future conduct. Such a heavy burden on publication would surely count as prior restraint.
Paul.
You are lost in a twisty maze of little standards, all different.
I would have insisted much more on the fact that DeCSS can -not- be used for mass duplication, and that, actually, even for creating single copies is not particularly useful. I think it would have been very good to point out that the encription does not, in any way, prevent pirates from copying software, neither does DeCSS make it any easier. And then, of course, I would bring in a testimony (a technical authority) to confirm this.
Encryptions only doesn't prevent you from copying as long as you have a way of duplicating DVDs.
We all know there's a high level of DVD ripping and copying going on - hence the existence of programs like FlaskMPEG and DVD2AVI. What ripping and recompressing to DivX achieve is to get the file size down to 1 or 2 CD's where you can burn it on a CD (and more easily download it), which is widespread technology, unlike DVD copiers.
Compare these ideas:
Scrambled Breakfast
Ingredients: 6 eggs, 1/4 pound beef breakfast sausage, 1 tbsp butter.
Requires: Frying pan, stove, bowl.
Serves: 2
1. Scramble the eggs in the bowl.
2. Brown the sausage in the pan.
3. Add butter and eggs.
4. Stir occasionally until firm.
Now compare to this:
Simple Bubble Sorted List
Ingredients: List (array) of integers
Requires: Memory.
Serves: A sorted list for one.
1. Examine list in memory:
2. Go through the elements one at a time.
3. If an element is bigger than the next one, switch them.
4. Repeat 2-3 until you don't switch any elements.
5. Result sorted list.
Now, one could rewrite the above recipe for a sorted list:
void bubble(int a[], int n) {
}void swap(int *p, int *q) {
}Now, one who speaks the language would understand both forms of the bubble sort recipe. It just so happens that computers also speak C. Lots of humans speak C as well.
Now, nobody in their right mind would argue that cooking recipes (like the scrambled breakfast) are not expressive. Of course they are. Nobody would argue that the recipe for a bubble sort is not expressive. It expresses an idea (algorithm), and also instructions to perform an action. Screenplays (read this, MPAA) also express an idea... they also give instructions on how to present the idea, via performing actions.
I argue that a recipe is not much different than a screenplay. Both are forms of expression, along with books, poems, and such.
Now look at the C code for the bubble sort. One who understands C can see that it is describing a bubble sort. It describes the same thing as the "recipe"! It's just written in something not-quite English, and not everyone understands it. Now, if I rewrite the recipe for bubble sort in, say... German... then what? It's not English, and not everyone understands it. Is it still expression? If a C program is not expression, then neither is a recipe written in German. Or any other language for that matter. Nobody would say that, however. The recipe in German is obviously just as expressive as it is in English.
I conclude that the recipe written in C is just as expressive as the one written in English. Since I also concluded that the recipe in English is as expressive as a screenplay or book or similar, it follows that the recipe written in C is as expressive as a screenplay or book or similar.
Just because a computer can understand it doesn't mean it's not expression!!! High level programming languages (relatively speaking... C is higher than ones and zeros :) were created for the benefit of humans, not for the benefit of computers. High level programming languages are "spoken" by humans. Every C programmer understands the C code above. When I wrote it, and they read it, an idea is expressed.
And now you know what programs express.
"Alcohol, Tobacco, Firearms, and Explosives" should be a convenience store, not a government agency.
A program is expressive because it is more akin to a description of how to do something, rather than doing it. There's a reason why programs are invariably copyrighted (even if a small fraction of them are also patentable). They are a literary work communicating from human to human, more akin to a patent appication than the patented device itself.
-russ
Don't piss off The Angry Economist
No it isn't! You purchase DVDs. You never sign any license. You never even click a button. Copyright law restricts your right to copy and distribute the DVD. Fair Use grants some specific exceptions to copyright law. Aside from that, you can do anything you want with the DVD you **own**.
The arguments I have seen so far are 100% bullshit, you can only convince a fellow geek with that. Is building a car engine an expression? Is a CPU an expression? Afterall a CPU is designed with a programming language like Verilog/VHDL? All those are engineering, especially to outsiders, they see no expression to that. I am a programmer, and I understand what you people mean by expression from the geeks point of view, but slow down, that is not going to sell to anyone else. With anything that is an expression, you use it to express yourself! People can express themselves with writing, music, painting,
h tm l
dancing! The closest I personally have come to expressing my self with code is via
writing "demos (computer generated artworks, ie: real time fractals, etc,), and povray.
The closest we have is the links below, and it will only begin to sell more when a lot of people begin to use these. Take java libaries for example, it is a documentation, show the court javadocs, that entire documentation was generated from java source code!!!!
Go to http://java.sun.com/j2se/1.3/docs/api/index.html
This is an expression!
Go to:
http://www.oldskool.org/demos/explained/
This is an expression!
Now, there is also WEB,
http://www.literateprogramming.com/
http://www-cs-faculty.stanford.edu/~knuth/cweb.
"The philosophy behind WEB is that an experienced system programmer, who wants to provide the best possible documentation of his or her software products, needs two things simultaneously: a language like TeX for formatting, and a language like C for programming. Neither type of language can provide the best documentation by itself; but when both are appropriately combined, we obtain a system that is much more useful than either language separately." -Donald Knuth
[08/09/1999] Lee Wittenberg adapts the string class described by Stroustrup to demonstrate the use of CWEB for C++ programming.
Example of code and documentation in one.
http://www.literateprogramming.com/string.w
------ Curiosity killed the cat. {satisfaction brought it back | it didn't die ignorant | lack of it is killing mankind
I would like to make a prediction. I predict that this case will not come out in 2600's favor. Why? Because the "old-school" copyright philosophy is so heavily entrenched in our legislatures and judiciary that other (copyleft) views are midunderstood, misrepresented, or (in this case) not mentioned at all. At root there seems to be a philosophical difference between the MPAA, et al., and the open source community, namely the benefit of strong copyright protection. There are those (Phil Greenspun?) who have provided good evidence that a business model based on openness can lead to success, with no need for "proprietizing" the product. This is not your typical liberal v. conservative issue, because the open-sourcers are extremely pro-free market. Their emphasis rests heavier upon the "free" part.
Nevertheless, this is a relatively new point of view to take and one that does not have much support in the legal community. In fact, the wind seems to be blowing in the direction of stronger copyright enforcement, not weaker. So long as the prevailing view in legal circles is "weak copyright leads to a weaker economy" this battle will not be won in the courts, IMHO.
- Rev.Here are the reasons that code is expression:
1. It is the medium through which discussion of programming techniques can be explored.
2. Code is math+logic, and expression of mathematical techniques and logical progressions is a long-defended practice.
3. Beauty doesn't really enter into it. When computer programmers communicate ideas from humor to philosophy to religeon to politics through source code, it is clearly an expressive medium.
In short: programming languages, terse though they may be, are the medium of modern technical exchange and thought.
In example: EMACS is a program which has existed since the mid '80s. The code contains religeous expression (the Towers of Hanoi, a classic application of mathematical techniques to religeous expression), political protest (Spook mode for confounding the NSA), humor (Yow mode). All of this, and EMACS is primarily designed to edit programs and text!
Which misses the states' point about DeCSS -- it's uniquely dangerous precisely because it *isn't* a copying utility -- it's a decryption utility. Because of that, it makes it possible to "rip" protected content and convert it to all manner of different (more easily traded and recopied) formats.
Which completely misses michael's point: if you use DeCSS to convert a DVD file to a different format no distribution has taken place, and no copyright has been violated. The copyright violation occurs when the (converted or unconverted) file is put on the internet. The fact that the converted file is more easily distributed is irrelevant. Or did you want to outlaw all of the things which make distribution of copyrighted files easier?
To within half a percent, pi seconds is a nanocentury. -- Tom Duff
In some countries, eg The UK, if you claim a tax exemption on a painting, you have to make it available for public showing.
I think there's a serious point that should be raised here. DeCSS is NOT the motion picture. It's a DECODING algorithm. So the issue becomes what does MPAA have to do with encoding/decoding of their media? Since it is possible to copy - in its entirety - a movie w/o knowing how to decode it, and then use it in a machine which does know how to decode it, there is no real form of complaint here.
If they procecute people for the ABILITY to copy a form of media to another, then I might as well go home and burn my tape recording deck, unplug my CD-RW, and turn myself in to the police, because any and all of these things fall under the same jurisdiction. At issue is not only the ability of code to be distributed (and why they're procecuting this, but not servers who distribute 1337 scr1p7s - which arguably cause more fiscal damage - might be worth questioning) but MORE IMPORTANTLY - what jurisdiction these sorts of things fall under.
This is not an issue of DCMA, but one of either - copyright law, or whatever laws govern reverse engineering and theft of poorly protected secrets.
I'm done
hmmmm?
How is computer code expressive? In the same way
that a written play, a piece of sheet music, or a piece of dance notation is expressive. Each is a set of instructions for the performance of an act -- the presentation of a play, the running of a program, the dancing of a ballet -- but we also respect them in their own rights as expressive works.
For example, music composition students often study the sheet music for important symphonies of past centuries' master composers. There is information and expression that can only be comprehended by another musician from reading the sheet music. By merely listening to the music, they would be unable to discern the many levels of complexity that give the performance its rich character. Only by referring to the music -- the instructions -- are they able to fully understand and appreciate the composers' expression and technique.
Is the music as performed expressive? Of course. But the instructions are also expressive.
Consider also the plays of Shakespeare -- pieces of art that are required reading for almost every high school and college student in America. We all recognize that attending a Shakespeare performance is a rich and exciting experience. But no one would say, therefore, that reading the plays is not equally, if not more, rich.
Why is computer code like a piece of sheet music, rather than like (say) a painting? A painter makes a painting only to be viewed in one particular way. Everyone who looks at a painting looks at it the same way.
A composer, however, makes sheet music for two audiences at the same time. One is, obviously, the "end user" audience, the people attending a symphony or opera. The other audience is his or her peers, other composers, other musicians, any one else who could learn from, enjoy, enhance or perform the piece.
Like music, computer code must go through a process of transformation -- performance -- before it is expressive to its "symphony" audience. But even as is, unperformed, untransformed, a piece of code has expression for those who know how to read it. To a layman, the dots and lines of a piece of sheet music are just so much gibber-gabber, but to a musician they are a fascinating artifact, expressive beyond any words.
Similarly, for a computer programmer, the code in a computer program can provide amazing vistas of new knowledge, expertise, humor, and virtuosity that would never be known just by running the program -- like listening to the symphony.
Now, oftentimes code is considered different from other expression because it is -functional-. Code, when used to instruct a computer, can actual make something happen -- maybe even something illegal. But, in reality, code is no different from a play or a piece of music in that regard. Plays and music, as well as choreography, make real things happen.
Consider a play with the following stage direction: "JACK moves upstage, pacing frantically. Then, grabbing the knife off the table, he dives into the audience and stabs 2 random audience members in the head and neck."
Obviously, the PERFORMANCE of this act would be illegal, even if it -is- expressive (Expressive of what, I dunno. Something horrible, I presume.) But can the text of the play itself be suppressed? One would normally suggest that the playwright is not responsible for the actual murder, even though he wrote the instructions. The actor playing JACK is responsible for obeying the law, no matter what the play says to do. Wouldn't, really, the user who transforms and executes a program be ultimately responsible for the actions of that program -- not the coder who composed it?
In summary: code is like a play, or like sheet music, or like choreography notation. All of these things enjoy the protection of First Amendment expression in our legal system. Code should have an equal level of protection.
And, really: how can an industry that expects First Amendment protection for both the instructions (scripts) and performance (films) of its products see things any differently?
Evan Prodromou | evan@prodromou.name | http://evan.prodromou.name/
I live in Chicago where it is illegal to possess Spray Paint. In fact, the "tagger" hired by IBM for the "Peace, Love and Linux" campaign is being charged with "Possession of Spray Paint" in addition to the vandalism charges. I wonder if the possession law can pass the Constitutional Muster.
Cheers,
Slak
Ahh... you missed it.
DeCSS is not designed allow copying of DVDs, it is to allow *decryption* of DVDs. This allows for things like viewing the DVD, and taking clips of the DVD for fair use purpoises that are impossible without some sort of decryption device.
The expected decryption device is a standard DVD player, but DeCSS is an equally valid device, just as it is equally valid to use Adobe Acrobat Reader or xpdf to view a PDF file.
-- The act of censorship is always worse than whatever is being censored. Always.
I think this is a very good example. I am 99.99% sure that I read that one of the developers of the mp3 codec at the Faurnhofer (sp?) institute tuned his compression coefficients by ear. He listened over and over to a Susan Vega song (Tom's Diner IIRC) trying to identify audible artifacts while monitoring the effective compression. Had the source material been in a different format, he would have certainly achieved different, possibly sub-optimal, results
SuperID
Free Database Hosting
This is not to dis 2600; I still have all my back issues. But pretending that the primary use of this magazine is to help secure systems is just talking stupid. It may be useful for that, but that's nothing new; e.g., "to catch a thief, set a thief".
The thing I loved (and really, still love) about 2600 is its cheerful immorality. Or rather, its different sort of morality, wherein clever exploration is the highest value, and things like property rights are strictly secondary. This doesn't mean that is a magazine for criminals in the ordinary sense; were someone to describe how to break into a bank's systems, the exciting part wouldn't be the opportunity to steal, it would be the clever hacking required to get in. I think of it a journal for geeky pranksters, not a magazine for the mob.
Alas, I no longer share 2600's philosophy entirely, but I do appreciate it. But the value of it would be pretty hard to convey to an authority figure; 2600's anti-authoritarian tone is not exactly calculated to warm the alleged heart of an appeals-court judge.
I got sick of my video collection, which is all VHS because each video is so big. I have started to convert some of them to VCDs. This means I can have the convenience of the smaller size, and I don't have to worry about when my video recorder finally breaks down. (also, who knows how much longer VHS recorders will be available)
I can only do this because their is no content scrambling system on VHS.
What happens in 10 years when I have built up a collection of hundreds of DVD movies and I want to copy them to another new format for similar reasons? (eg, my new portable movie player that I can take on planes with me and carries 100+ movies at once)
I'll tell you what happens. I use DeCSS to remove the stupid scrambling system and I copy it to the other medium in question. If someone would like to explain how thats not fair use, I'm listening.
-- MartinG To mail me: echo kewyjlcxyzvjfxbqwh | tr bcefhjklqvwxyz
Programs as speech/art: The International Obfuscated C Code Contest
------
Interestingly and ironically, there was a series of "howto" articles a couple of weeks ago in the NY Times Magazine and one of them was about how to rob a bank. The article is here: http://www.nytimes.com/2001/04/08/magazine/08ROBBE RY.html. The reader response is here: http://www.nytimes.com/2001/04/29/magazine/29LETTE RS.html (need free registration)
I have never read 2600 and could not find it at my local Borders. What is this "Fun at Costco"? It sounds, well, fun. The 2600 web site appears to be slashdotted. oh well
many transient copies are made of it: in system RAM, in video RAM, and possibly on hard-disk swap or other files.
Obviously, these copies must be of the highest possible quality, or the experience is degraded.
Or is listening to and viewing copyrighted works not part of "Fair Use"? IIRC, there
may already be a provision in the DMCA for just these transient copies.
And then, of course, I would bring in a testimony (a technical authority) to confirm this.
IANAL, but I believe that since the case is already at the appeals stage, they aren't allowed to introduce new witnesses or new evidence not already presented at the first trial. If this was brought forward at the original trial (and I believe it was) then Sullivan followed the avenue that was open to her, stressing the fact to the appeals court.
However, I tend to agree with the MPAA that the DMCA doesn't require 'actual' harm. Of course, I disagree with the MPAA on the Constitutionality of the DCMA. Copyright holders have a right to be protected from actual harm the same way virtually all other potential victims are 'protected' from potential crimes, by the deterrance of the actual crime through prosecuting the criminals that commit them, not through the prosecution of people who possess legitimate multipurpose tools that have the potential to be used in a crime.
Using the Justice Dept. lawyer's own soundbite against him, while DeCSS may very well be a 'digital crowbar', it is not a crime to own/design/distribute a real crowbar, but the DMCA makes it a crime to own/design/distribute a 'digital' one. Real crowbars are a legitimate tool with many legitimate uses besides breaking and entering. If he wants consistency, then the Justice Dept. lawyer should be lobbying Congress to outlaw real crowbars (and VCRs, tape recorders, CD-RW drives, DVD-RAM drives, floppy disk drives, hard drives, zip disks, etc., etc.).
Work for Change & GET PAID!
Programming is a form of art. Not only is elegance and beauty possible in programming computers, these are at the core of a good programmer's value system. Computers present to mankind the first opportunity to do what religions all over the world have failed to present: the ability to receive unambiguous answers to incantations and prayers -- computers are the man-made gods who listen. I am, of course, talking metaphorically about instructing computers to create what we want to exist.
Like other information should be available to those who want to learn and understand, program source code is the only means for programmers to learn the art from their predecessors. It would be unthinkable for playwrights not to allow other playwrights to read their plays, only be present at theater performances where they would be barred even from taking notes. Likewise, any good author is well read, as every child who learns to write will read hundreds of times more than it writes. Programmers, however, are expected to invent the alphabet and learn to write long novels all on their own. Programming cannot grow and learn unless the next generation of programmers have access to the knowledge and information gathered by other programmers before them.
~KHow about this one: Obtain a program which produces CSS-like output. Encode some kiddy porn with it. Distribute same.
In order to bust anyone for it, the Feds will have to prove that the file contains prohibited material, requiring a copy of CSS for themselves!
It is easy to provide examples of code used as expressive speach. Just look at the bookshelf of an computer science professor or student. The most clear cut example is to take any instance where code is used to describe an algorithm -- you have code being used to express a mathmatical idea. In this case, code is not just a language that a machine understands, it is a technical language that a person understands. And in this case, the code explanation is usually more clear and precise for the reader than an english explanation would be.
I think that the difficulty in characterising code as expression is that a programming language is a jargon language. I know that in following this case I've read a lot of US legal jargon (citations, Latin phrases and so on) which mean about as much to me as C++ would to an average lawyer. It's meaningful. It expresses something. It's hard for someone not fluent in the field to see what, though.
One example that might help is that programmers who write open source code often use it as part of their resume, much the same way as a photographer uses their portfolio or a filmmaker uses their show reel. Of course, this is not to say that a program must be in source form to be expressive; a song is expressive even if the composer doesn't publish sheet music, after all.
Another avenue to explore is that a lot of art is functional. I have a book open on my desk at the moment to a page featuring a chair designed by John Hutton. The chair is now in some art gallery somewhere. It's strange to think of a chair as a form of expression, but there you go. More close to home, we don't doubt that advertising art is art (Absolut Vodka, anyone?), but we also don't doubt that it's primarily functional (in this case, to get you to buy expensive alcoholic beverages).
Here endeth the rambling.
sub f{($f)=@_;print"$f(q{$f});";}f(q{sub f{($f)=@_;print"$f(q{$f});";}f});
Here's a very small (that's the art part) of code I saw many years ago. I thought it was art then. I still do.
... the tiniest expression of a thought, perhaps, its essence. Code provides a medium for this sort of art that does not exist elsewhere. And it is not just minimalism... Check out Knuth's sources to TeX ... that would have to be the other extreme.
#define SWAP(a, b) ((a)^=(b)^=(a)^=(b))
Why is this art you say ? It is very like Haiku, expressing its subject in its most minimal form. While you must understand the symbols of the medium to "get it" this is also true of Noh, opera, and many other art forms. In this instance, the art is in the minimalism
-- Rich
Free your mind and your Ass will follow -- George Clinton
I had a really good friend that made the following comment:
"A really good mathamatician can appreciate good art, but a really good artist can't appreciate good mathamatics"
I find this statement sad, but true. In some ways what needs to happen is an effort to let people know about good quality code.
Donald Knuth does indeed write good software, although some of the better code that I've de-compiled has been written by Steven Wozniak, and is one of the reasons why I am a software developer today. How many people do you know that have been able to "hand-assemble" a software development environment? And I'm talking about looking the opcodes up in a table yourself and trying to remember what order the operands go with the opcodes.
Damn, I wish I had a couple of moderation points right now. This should be modded up, if for no other reason to draw attention to the argument against the expressive nature of software.
Ocne a copyright expires on a DVD (in, what, 70+ years form now?), they then expect the circumvention devices to surface.
No, it's not 70 years from now. Many DVD's were made for old movies, for example Charlie Chaplin. Often the studios add something new so that they can get a new copyright, but this only protects the new elements. You can use DeCSS to obtain elements of the digital work that are in the public domain as of right NOW.
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?
A computer program expresses a method. It expresses functional ideas, much as a recipe, scientific experimient instructions, or musical score does. The actual expression depends on the program, so the question is sort of like asking what a musical score expresses - a general answer is very generic, but any specific instance of such communication will be much more rich. Here, DeCSS expresses the functional ideas that demonstrate that CSS is insecure in a specific tangible way. The First Amendment protects such content even against a Congress bent on stiffling that particular idea from dissemination.
Softwares expression generally is equivalent to standard english sentences with the understood 2nd person subject ("You"), followed by the verb given by the instruction, and a direct object that tells what the operation occurs on. A decryption program, for example, generally expresses a mathematical forumla, and are often an implementation of functional ideas learned from reading mathematical literature. Computer books are filled with programs and form a major sections at most bookstores precisely because they are expressive. Programs are copyrighted because they are expressive. Computer programs are not part of any "conduct" until and unless they are executed. Instead, a program merely communicates functional ideas that might be exectued or might be read by the legions of programmers actually do read and understand programming languages.
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
The question is misplaced. Fair use admits no bright line rules (See Leibovitz v Paramount, opinion by judge Newman) A rule that said "No fair uses exist for high quality digital works" is therefore impossible to assert. Instead, fair use is an affirmative defense to copying as chosen and performed by the alleged infringeer. If the four factors weigh in favor of fair use, then fair use exists. To abstractly argue this can never be the case for digital movies requires proving a negative, which is impossible and counter to copyright jurisprudence.
We'll answer the question anyway by providing just one example, that happens to be relevent to DeCSS: "Interoperability" is one class of fair use that clearly has a well-established existance in copyright jurisprudence. Using DeCSS to allow interoperability of DVD's with alternative operating systems and/or MPEG-2 players is done for personal, noncommercial use, and increases rather than decreases the potential market for the copyrighted works in their high-quality digital form. Linux users will now buy DVD's, if allowed.
A common useage of code is to describe "how to" do certain things. Look at all the reference implementations there are floating around, such as sample device drivers. Their purpose is definitely NOT to do anything in and of themselves, rather it is to show others how to write their own device driver (or their own texture mapper, or CRC generator ...). This is most surely "expressive speach". Indeed, such sample code is frequently accompanied by warnings that it may not work and is for reference only.
I think of the following items when I think of expressive code:
1) In *Understanding Comics*, Scott McCloud came up with the best explanation of artwork I've heard, which is, in essence: artwork is anything outside of what is absolutely necessary to get the job done. So, what parts of code are done because they're necessary, and what parts of code are done because they're expressive?
2) There is such a thing as mathmatical/coding beauty; the beauty of an algorithm that does what it should with simplicity, with elegance, using mathematics/code to come up with something elegant. What defines mathematical/coding beauty vs. mathematical/coding ugliness?
3) Is a bannister made by a poor woodworker any different from a bannister made by Norm Abremson (The Yankee Workshop on PBS)? If so, is the difference functional, or artistic? And doesn't the poor artist have as much right as the good artist?
Whatever you do... don't read this.
You wouldn't even need a big hard drive, like I do with my CD collection, I have about 100 of my favorite CD's ripped as MP3's and burned onto five disk that I carry when I travel so when I'm working I can slap one in and it lasts the whole day.
With DeCSS I could rip a DVD from home (I have about 175 of them) recompress the MPEG2 into DivX or MPEG4 and easily fit a movie on my laptop.
Heck, once DVD-R becomes affordable, I could burn 3 or 4 movies on to one dual-layer disk.
With the new and bigger storage device coming out (Seagates 180GB HD, the prototype 1TB glass cube), it won't be long that I could store all my movies on the server and have them streamed to my Home Theater via FireWire.
This is not the sig line you are looking for... -- Old Jedi Sig Line Trick
Oh, I see, DeCSS let's you convert Content (tm) into a form that you find more useful. Huh? I don't understand. Surely the All Benevolent (\w+) Associations would be sure to provide you with Content (tm) in the Best Possible Format. Personally, I think it's quite arrogant of Hackers (tm) to think that they can improve on BPF files.
Now, what are the so-called Legitimate uses of DeCSS again?
Can your IM do this?
She also made much of a rather telling fact: there is no piracy attributable to DeCSS whatsoever. Not one traditional copyright infringement has ever been attributed
to DeCSS, and the movie studios admitted in the case that they could not produce even one example of an infringement due to DeCSS. (Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required, though that wasn't covered
in the hearing.) But Sullivan jumped on this point for all it was worth and then some -- the judges seemed fairly skeptical about accepting it, trying to insist that widepsread and massive copyright infringement due to DeCSS must be occurring, somehow, somewhere. It just must be.
I would have insisted much more on the fact that DeCSS can -not- be used for mass duplication, and that, actually, even for creating single copies is not particularly useful. I think it would have been very good to point out that the encription does not, in any way, prevent pirates from copying software, neither does DeCSS make it any easier. And then, of course, I would bring in a testimony (a technical authority) to confirm this.
I believe that, if we break the scepticism and -ignorance- of the judges, we can have the case largely won.
Remember, this case is buit upon ignorance!! The way to de-construct it is to decrease the ignorane.. through education. I believe that a lot of (self)education was what happened to judge Jackson.
Sigged!
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?
Ok, let me take a stab at this one.
Really, I don't think the code itself is necessarily a form of expression. The expression is in the meaning of the code itself. I model communications system using a computer "language" called HSPICE that some of you EE's out there may be familiar with. Well, using HSPICE, there are many ways to go about arriving at the same goal. The outcome is always the same, either correct or incorrect. However, how I get from point A to point B is my decision and may be completely different from one of my coworker's solutions even though the outcome is the same. This is what makes each program unique and therefore an extension and expression of myself. So whether the language being used is HSPICE, FORTRAN or C, it really doesn't matter. The same concept will apply.
The code should be protected because the protection is in the methods involved to reach the solution that are implicit in the code, not the actual code itself. Any individual can write code to solve a problem. It's the actual content that makes the program efficient, user friendly, etc. Programmer A and Programmer B may both be able to solve the same problem, but Programmer A might have a faster, easier to use interface, better program in general even though the goal is the same. It is the intellectual property contained within the code that should be protected.
Could this be applied to voice recognition software? That your speech is being used to control the actions of a computer?
Or is that just data?
What if you're dictating an actual programming language (something english-like, such as applescript) to your computer through voice rec software?
I think I'm straying off topic, so I'll shut up now....
Jason
Academic research of many sorts requires such access:
- research into compression algorithms
- computer vision research, eg face recognition
- medical research (looking at tiny skin features, tracking eye motion, muscle tremmors)
- social science research that needs to view tiny objects in the background, such as advertisements and product labels
- tracking actors through their careers via face recognition
- meteorological studies looking at cloud features, night skies
- history of science and technology, optics & camera technology
- ecology, looking at foliage, insects, birds
There are all potential fair uses. Some of them are beyond our current technical capabilities. But not for long.This was a mistake. The answer should be 'no'. The argument is as follows: It may be the case that the NYT "specifically intends to disseminate every bit of info on every single page that it ever links to" at the exact moment the link is authored, but as the web is dynamic, this stance cannot be taken for any time beyond that. For example, say the NYT links to site A for what they feel is a legitimate purpose. Within minutes (or days, or years), site A is altered (or cracked) to display child pornography. Can a case be legitimately made against NYT for "intending to disseminate" child pornography? Why should they be responsible for the behavior of another web site?
We should have access to the unencripted data to transfer it to another media. DVD technology will not last forever. Sooner or later well need to copy our DVD archives to some new medium. Any out there have a Laser Disc collection they wish they could copy to DVD?
The reason code can be expressive is that you can do the same thing many different ways. Even something trivial like evaluating a mathematical function could be done by itteratively, recursively, or maybe with an unrolled loop. The itterations could be done with a counter variable that was incremented by one each time, or with a floating variable that is increased a little each time, or with a pointer or itterator. Maybe the best way to evaluate the function is to use a Taylor series or maybe it's to use a look up series. The fact that a programmer has so many options allows his/her choice of one of them to be expressive.
Now if I'm a beginning programmer and only know one way to do something, then I think it's reasonable to argue that doing something to only way I know how is expressive. Somehow I don't beleive that was the case here.
The other very relevant fact to this argument is the publication of code that doesn't compile. I'm thinking of things like meta-code in an algorithms book. There is no compiler that will generate a working program from that code. To a computer it only means error messages. Yet to a student or experienced programmer, that code expressess an idea. It conveys an approach to a problem. After understanding that bit of code, then they can go and write another program that a computer can understand and turn into an executable program. It seems to me the origianl code in the algorithms book was pretty expressive.
"That is, one cannot excerpt a digital clip of a CSS-encrypted DVD, but one could point a video camera at the screen and create a clip, albeit of poor quality. Is that sufficient for fair use?"
I point a digital video camera at a highres screen, the quality, good or bad is a digital reproduction of the original and has in effect bypassed the protection. The camera has become a device to defeat the protection. Hence all cameras would have to outlawed also, since they may or may not be used for the purpose of theft, and even one copy of the original supposedly is the death of the product (and how does entertainment media warrant such protection for commercial interest).
I do know that the DCMA road taken to it's logical conclusion is a direct violation of the spirit, if not the letter of the U.S. constitution.
Why did we ever evolve beyond that? One of the main reasons is because all those ancient programs written in just ones and zeros were absolutely unmaintainable. It was very difficult for another programmer to come in, look at your program and figure out what it was doing. One of the biggest reasons high level languages were invented was to allow programmers to communicate more efficiently with other programmers.
It's well known that the closer you get to the machine hardware, the more efficient your program can be. High level languages add inefficiency to the program. So why don't we all prorgram just using ones and zeros? Because the trade-off of being able to have another programmer easily understand what you're doing is worth the inefficiency. Same thing goes for flow charts, UML, pseudocode and all the other things we've come up with over the years. Saying a computer program isn't speech because you can't understand it is like saying German isn't speech because you can't understand it. It's that simple.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
>1. Why and how is a computer program expressive speech? What does it express?
...perhaps there are others.
>Assume you have some C or perl staring at you, any random block of code in any random print-out.
>What does it express? Why should that code be protected expression?
I've been reading Doug Hofsteader's "Godel, Escher, Bach" recently, and he describes all communications as consisting of at least two components: an outer "trigger" message (which identifies the communication as a communication, as opposed to random noise), and the inner, or actual semantic message. A computer program consists of both of these. The "outer" message in code form establishes that this is a computer program, that it works in certain contexts (i.e. a C program won't likely run on my old TI calculator that doesn't have a C compiler), and so on. The "inner" message of the program is the semantic meaning - in the case of DeCSS, that it is "meant" to be used to decrypt DVD streams; that is its intent. Nevertheless, that meaning is *implicit* - it is never stated explicitly within the code itself, other than via the social context the code is distributed within. In a real sense, the computer program itself is not what is being banned; it is the implicit message of DVD decryption. After all, the MPAA would readily ban *all* possible incarnations of the semantic knowledge of how to decrypt their DVDs, not just a given C or Perl program.
What I'm driving at is that, in a sense, this case has little to do with the code itself. In fact, the code can be readily transformed into nothing more or less than a set of functional equations - pure mathematics. It can further be thought of as being devoid of its supposed semantic meaning, or even invested with a different semantic meaning, say as an example of code techniques, or an an entry to an Obfuscated Code contest (and in this case, that's somewhat apropos). The code could even be thought of AS A FORM OF POLITICAL PROTEST - after all, isn't that exactly what a DeCSS T-shirt is?? The T-shirt certainly isn't meant to be used to help decrypt a DVD by hand, is it? So what is *its* semantic meaning? And if it *is* a form of political protest, then how can its expression be constitutionally limited??
>2. What examples of fair uses absolutely require access to the work in its most modern, digital,
>uncorrupted, un-macrovisioned form?
First, the argument about requiring access in "the most modern... form" is irrelevant. Given the direction of the MPAA and others, it is clear that soon, all new works *would* or *could* be made available only in ways that would prevent practically all fair use; therefore, it doesn't matter whether there are older forms of current works or not.
Second, to me, the most striking and necessary applications of fair use are for satire and parody. Some of the best pieces of literature, music, and fiction in the Western world have been direct parodies of other works. Parody and satire have repeatedly been used to bring about social and political change. And if in the future new works are made available only in formats that *prevent* the application of fair use (by preventing copying of even small pieces of a copyrighted work, like designs, themes, graphic patterns, and so on), then we will have lost a significant tool for understanding our own culture. That is simply not a good price to pay in exchange for corporate IP rights. DMCA is simply bad law, and a bad deal.
If campaign contributions are expressions of free speech, then why not code ? Time shifting of broadcast material is a good example of 'fair use'. I would not consider a degraded copy of a movie acceptable if I am paying for a full subscription to a movie channel. It is too easy for a DVD to become scratched in which case the movie studios tell me to buy a new one. Why wouldn't I be justified to make a backup copy ?
Why should the penalty be stiffer?
Frankly, I think the "burglary tools" concept is silly at best. Commiting a burglary with tools is no more or less "wrong" than committing it without tools. In essence, its the same crime, it does the same real harm, why should it not be punished the same?
If anything, the use of such tools shows that a burglar is smarter than the average doorknob.
Why should there be an extra penalty for being a smarter criminal? That offends my senasabilities. There should be an extra penalty for NOT having the proper tools for the job with you.
Any sort of system of punishment should be based on actual harm done and (depending on the crime) malicousness of intent (murder with intent and a car accident that kills someone have similar harms, but are really very different crimes). Not on HOW the person commited the crime.
I see fundamentally no difference between breaking into someones house and killing them with your bare hands, and shooting them in the head with a gun. Either way its murder. Same crime, same punishment. Why should the penalty be more because "he used a tool to commit the crime". Or reverse it...why should the penalty be LESS because a person didn't use a tool?
Its the same crime afterall. Same harm.
-Steve
"I opened my eyes, and everything went dark again"
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression? A computer program is expressive speech because it's a reflection of the programmer's taste. For example, if you had 5 programmers attempt to create programs to perform the same functionality, you're going to get 5 different programs which do that same thing. Computer programs in their simplest form are nothing but instructions. Computer programs can be interpreted by computers and people. They are a list of what-to-do. Going torward's the US Attorney's statement concerning digital works being like a painting in a living room.... then isn't DeCSS just like a piece of paper giving you driving instructions to the house, and telling you what room the painting is in? As far as I know, that's not illegal. Software represents opinions. Opinions on how the autho thinks things should work, and how he enjoys to do them. My C++ teacher once said, "you can tell a lot about a person from the way they write programs." 2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others. Let's not forget that displaying copyrighted work for means of criticism is fair use. You need access to the uncorrupted format in order to show people what you are criticising. If I'm a movie critic, I don't need the publisher's permission to show a clip of a movie I'm criticising, because it's fair use.
The standard textbook analogy notes that algorithms are recipes of sorts, designed to be followed by novice cooks. A recipe book written for great chefs might include the phrase "Poach the fish in a suitable wine until almost done," but an algorithm for the same process might begin, "Choose a white wine that says 'dry' on the label; take a corkscrew and open the bottle; pour an inch of wine in the bottom of a pan; turn the burner under the pan on high; ..."--a tedious breakdown of the process into dead-simple steps, requiring no wise decisions or delicate judgments or intuitions on the part of the recipe-reader. (p. 51)
How can we look at algorithms as any different from recipes? Recipes are valued for their beauty, effectiveness, complexity, and so on. We don't say that recipes are not expressive because they merely state a fact that if you add such and such ingredients and bake at such and such a temperature, you will get a cake. How would chefs feel if their prize winning chilli recipe was deemed not creative or not worthy of being called his expression?
What somebody should do is publish a cookbook that has all of its recipes written in code. You can even add in comments talking about it
/* this is a little thing that I whip up every time my inlaws are in town--*/
This seems to be one of the best defenses of code becuase it makes one form of expression identical to it in nature. How can they then be different?
btw, good thing we can still use fair use excepts from books, otherwise I couldn't have quoted you the passage from the book!
The language defines a framework and model in which you can express knowledge, ideas and commands.
The format represent the basic structure with which you can share information with other entities.
The media is something that we can either store information on, or pass information through.
Speech is Code.
- Steeltoe
http://www.debunkingskeptics.com/
There are a billion fair uses in the compression academic literature of a playboy centerfold photograph from the '70's. Her name is Lena. A copyright on the image is owned by the magazine.
The product they produce with DeCSS is much easier to distribute.
--
Free Mac Mini
Well that's what I was getting at. The DivX part
--
Free Mac Mini
When I program I spend a lot of time trying to write in such a way that other programmers can understand me. Or even if I don't think other programmers will ever read what I write I write so that I will be able to understand the program later on.
... z" The tshirt is funny because it's not true. Good programmer choose their variable names so that people can easily understand what they are.
People sometimes put some kind of a line between writing comments and writing code. To me there isn't that big of a line.
Sometimes, if I take a program I have writen and take out all the comments then it's not usefull anymore. I might as well have compiled it once and deleted the source code.
Take a C program and look at the whitespace. None of that is there for the compiler; it's there to help humans understand and read what is going on.
Today I saw a tshirt that said, "Real programmers only need 26 variables: a, b, b,
Sometimes source code is the easiest way to understand something. I've never read his books but they say that Donald Knuth created his own programming language to talk about the algorythms in one of his books. I'm not sure if he even wrote a compiler for it. If he didn't then none of the source code in his book was even usefull in any way except as a communications device.
Source Code is seldom beautifull in the same way as a Van Goghe painting which makes you cry. But it is primarilly comunicative. It's not necarilly even usefull except when compiled.
Expression is the material embodiment of thought. It's that simple. (* Well maybe not that simple, material may be the wrong word. Expression is the persistent embodiment of thought, something that may be shared by others, maybe that's a little closer).
I'm the big fish in the big pond bitch.
Take Photoshop for example, it is patently a device for creating constitutionaly protected forms of expression. Restrictions on the sale or dissemination of such devices, other than within the limits of IP law, is as unconstitutional as restrictions on the output of such a device.
Viewing an actual printing press in the same manner the MPAA views DeCSS would obviously be wrong. Sure a press can be (and many are) used for massive copyright violations but the rights of people to publish take precedence over the possible illegal uses of such technology. The fact that in this age of the internet presses of all sorts have become widely affordable makes no difference at all unless the courts take the elitist position that the wealthy have more of a right to publish material than most.
Insanity is the last line of defence for the master diplomat. But you have to lay the groundwork early.
Why is it so difficult for the 2600 lawyers to demonstrate that DeCSS does not stop copyright infringement? The demonstration is very simple. All they have to do is bring a coupld DVD movies to the courtroom and make several copies of them in the courtroom (without using DeCSS) for the judges to take home for their viewing pleasure.
DeCSS is all about micro-managing distribution and creating artificial prices. It has nothing to do with copyright protection.
The real answer is that it's much easier to prove possession of burglary tools than it is to prove burglary or attempted burglary. (BTW, don't mistake my stating the principle as support of it. You're quite right that punishment should be based upon actual harm done.)
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
Academic study of any small detail of the film. Music history depends a lot on studies of the papers and inks used in making original manuscripts. No photocopy, how ever good, will suffice for this sort of academic research.
Classical studies tabulate the frequencies and distributions of individual letters, words, phrases, and constructs in old texts, and gain useful insight into questions of authorship, for example which roles Shakespeare himself played in his plays, and how repeating those lines had a subtle effect to his language in following plays...
I would expect future studies of film history want to make similar studies on various technical details of different films. For example, studying westerns, one researcher might need to get a slowed-down close-up view of every time a gun was drawn in various films... Or similar close-ups on various film tricks (digital and others) to show and appreciate the craftmanship of the makers.
In Murphy We Turst
And aren't DVDs essentialy computer software?
--
andy j.
Stupid Cheap Guitars
*shakes head*
--Fesh
--Fesh
Kill -9 'em all, let root@localhost sort 'em out.
Notice the bold bit. Why is it, do you think, that they phrased it that way? It's what we've been saying all along, posession should never be the sole argument for applying criminal penalties to a person. The FLAA's would rather just toss you in jail for having things like DeCSS because it's just the teeniest bit harder to prove intent.
Wow. The DMCA is overly broad because the FLAA's are lazy. Who'd have thought?
--Fesh
--Fesh
Kill -9 'em all, let root@localhost sort 'em out.
I see a huge flaw in the lawyer's response. Ocne a copyright expires on a DVD (in, what, 70+ years form now?), they then expect the circumvention devices to surface. However, since other DVDs would still be out there with their copyright in effect and the circumvention tool could just as eaisly be used for those, the tool would still be illegal under the same premise as it is today: it could still be used for illegal purposes.
Thus, the movie industry would only have to release a new DVD encrypted with the same technology every few years to extend the ban on these circumevntion tools. Is it a problem? no. By the time the first copyrights expire, the technology will long since have been replaced.
What if 2600 linked to the New York Times article? The article itself isn't illegal, so they're not directly linking to anything illegal. The linkt o the illegal material would now be indirect. But since 2600 is still a bunch of leet hax0rs, their intent is the same -- so should that indirect link be illegal?
I think that this is also covered by fair use.
When I buy the content, I have the right to view it - in its purest, unadulterated form, on any device capable of reading the medium I bought it on.
If I choose to have a Linux box reading my DVD and exporting a digital quality signal to a projector, I should have the right to do that - after all, I am just watching the content I have fair use rights to in an attempt to enjoy it.
But now I have no choice over the medium I use - I have to use a DVD player that is licensed by the MPAA - and if they choose not to give a license to my faviourite distributor of hardware/software (in my case the Open Source Movement), then I have no choice but to go to someone who has been "vetted" by the MPAA.
This is bad.
Choice has an economic value - if you limit the choices people have, you impose limits on their enjoyment because you impose upon them a limited set of options. Capitalist economics provides a huge amount of choice to people because when something people want doesn't exist, someone goes and creates it because that creation will generate value - people will be willing to pay for it if it is a good alternative to what is currently available on the market.
The DMCA as it currently stands is an economic aberration as it allows a company that traditionally only makes content, to extend it's economic and legal reach vertically into the distribution devices downstream of it's market area.
I believe that were these companies to try to do this by acquiring the companies that make the hardware, they would be blocked (or at least investigated) via Anti-Trust legislation, but this provides them with a nice way of controlling the distribution channel all the way to the box in the customers house without having too much attention drawn to the power they are obtaining.
This is anti-competitive, and anti-consumer. If I buy the content, then I have a right to watch it - the link back to the maker of the film is not, in my opinion, strong enough, for them to be allowed to force me to buy an Orwellian television set that will tell me what I can and can't watch/clip/copy/manipulate - and then impose upon me the added restriction of not being allowed to figure out how the device that controls what I can watch works, because reverse engineering is illegal.
Salocin.com
The problem with your argument is that the law does not define what media you are REQUIRED to use to make your backup copy. Suppose I wanted to backup my BetaMAX or old laser discs to VHS or my tapes to CDs or vice versa. The law doesn't require that I back up a CD to a CD or Tape to Tape. The law doesn't demand that I use any particular type of equipment in which to perform my backup. So under your scenario that exact format copies should only be allowable if you purchase same equipment and media, where can I get a vinyl press so I can make backups of my Beatles records?
"Do not be swept up in the momentum of mediocrity." - anon
Why should I be required to own a camera to make fair use of the DVD that I paid for, and still have in my posession?
Why should I have to go to lots of trouble setting up a camera simply to exercise my fair use rights?
Why? Because someone else, somewhere, might theoretically pirate DVD's?
Continuing the crowbar analogy, if we make crowbars illegal, there are other alternatives for the legitimate uses of crowbars -- no matter how cumbersome or inconvenient they may be. The people who use crowbars for legitimate purposes should be required to bear the burden of using inferior alternatives, because some people somewhere could potentially use crowbars for illegal purposes.
The opposition who invoked the Digital Crowbar analogy was exactly right! DeCSS is a digital crowbar. It is a tool. Lots of other tools have potential illegal uses as well. Where do we draw the line on banning tools because of their potential for illegal uses? Should we outlaw photocopiers, VCR's? DVD players?
Changing gears again...
Should anyone have the right to build their own DVD player? Should it be illegal for me to build a device in my garage that can play DVD's? What if I want to build a DVD jukebox that copies my DVD's to a big hard disk and then presents me a "jukebox" interface to select and play DVD's in my family room? Should it also be forbidden to build a CD player? An old fashioned phonograph using a straight pin and tin can? Should it be be illegal to use two tin cans and a string? Maybe all engineering at all levels should just be illegal?
Those who would give up liberty in exchange for security and DRM should switch to Microsoft Palladium!
> Why and how is a computer program expressive speech?
... . Very little of the above is part of the common vernacular nor even comprehendable by the average American, yet all are speech and expression.
There have been many discussions in the past two years about code as expression. Briefly summarized in a simile: code is to what programmers use to communicate as chemical formulas are to what chemists use to communicate, as mathematical notation is to what mathematicians use to communicate, as legal jargon and statute notation are to what lawyers and judges use to communicate,
Code can be the most succinct way to show you an algorithm, in the same way that a string of chemical symbols may be the most succinct way to express a complicated benzene ring structure, in the same way that statute notation may be the most succinct way to communicate where to find the law detailing a specific tax issue.
Code is very personal, in part because it is language. Back (way back) in high school, if I left my name off of an essay, my English teacher could identify it as mine. In the same way, I could look at the code written by co-workers and identify who wrote it by the style and content. Any code, of good or bad quality, is expression by the person who wrote it.
Lastly, we've been writing code using programming _languages_ long before code was challenged as language, expression, and speech.
> What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form?
Handicap accessibility may be one. Physically handicapped people may need to transform the information in some way so that they can access it. Hypothetically, let's create a person with no eyes, but has a machine to transfer images to his optic nerves. And there is loss in the information transfer. In it's highest quality form, he might view something worthwhile, but if he starts with a scratched record, what reaches his brain might be unrecognizable.
-gps
Wow, you better get to the supreme court, they need you bad. Here legal scolars for years have been making exceptions for silly things like libel, slander, threats, harrassment and conspiracy, divying up speech any way they choose, and if they'd only "read the constitution many many times" like you, they'd know better.
*cough* *cough* but in serious non flame, the legal issue here is in fact expressive speech, not just the ability to write or say it. And if we want to have a useful legal discussion about how things will be treated in the real world, I thought it would be useful to understand the terms that matter in the courts, not our personal opinions on How The Legal World Should Be.
kahuna Burger
...will work for Chick tracts...
however, while I am not a lawyer, I'm fairly certain that said plans are not "expressive speech" as used in constitutional law.
All information is not expressive speech. I believe the term was coined in response to non verbal protests such as the black arm bands in "Tinker..." or flag burning. I may be wrong. But we need a solid legal definition of "expressive speech" before everyone goes running around trying to say what is and isn't.
For myself, I don't buy the all code is expressive speech line in the slightest. The lawyer quoted seemed to be trying to prove it by showing that code could be USED as expressive speech, therefore code IS expressive speech. BS. There is very little that a creative person cannot do or create in a way that makes it expressive speech. Those examples do not make everything in the world expressive speech when done without that special intent.
For instance, in the midwest farmers growing feed crops such as alfalfa will use a special machine to turn the harvest into a bunch of big bales that look vaugly like 6 foot tall cinnomon rolls. (then the neighboring kids play on them all fall and as adults discover that just sniffing a bag of pet alfalfa makes them relaxed and happy, but thats a different subject.) A farmer with something to say could do his baling in such a way that passengers on an airplane flying above would see little dots spelling out "I love my guns" or "go Royals!" or any other expression he wished to make. And his alfalfa baling would then be a form of expressive speech. But no one in their right mind would say that this possibility makes all baling a form of expressive speech.
Kahuna Burger
...will work for Chick tracts...
Good point! :-)
Grab.
The most obvious example of fair use I can think of is quoting. You have a right to quote excerpts from a work up to some limit (10% of the work IIRC) for research purposes.
This is basically designed for textual sources, but there's no reason why it shouldn't apply to music and video. If in 10 years time you're writing a dissertation on the visual effects used in the Star Wars films, you MUST have access to the originals so that you can analyse it frame by frame and pixel by pixel. A grainy, noise-added copy just isn't good enough to base your work on. For a textual analogy, a literature student has to work off the original source-book, not off a Reader's Digest condensed version!
Grab.
I'll take a stab at this one.
Computer programs can be protected speech because they are the literal representation of an abstract creative idea. The actual letters and numbers that make up computer code is simply the concrete version of some programmer's insight and creativity.
The algorithms and logic in DeCSS are the embodiement of a human being's intent, which includes political and social thought.
Look at it using one of the MPAA's metaphors: courts have conclusively decided that it is possible to infringe on the copyright of a script even if all of the letters and punctiation are different (that is, the infringer paraphrased the original).
It's not about the code as a series of letters and numbers, it's about the expression of creativity that some human had. The code is just the physical manifestation of that creativity. Outlawing particular types of code is paramount to outlawing particular types of thought or speech.
-b
If I wanted a sig I would have filled in that stupid box.
Oh come on, how many Computer Science students read slashdot? This is easy: The Curry-Howard isomorphism showed that the Lambda-calculus, the prototype programming language , is isomorphic to mathematical proofs. Mathematical proofs are absolutely protected as free expressive speech. Of course its more complicated than that. Its really a certain type of the lambda-calculus and a certain type of mathematical proof, but still, it establishes that a computer program is simply a mathematical proof in a different syntax. You can then use other Chruch-Turing equivalences to spread this to other automata and programming languages. Though you lose the absoluteness of an isomorphism and you are left with some lesser type of equivalence. So you would have to argue that program and proof both express equivalent things as opposed to being exactly the same thing written in two different languages.
You can also use the natural number arguement. You argue that all data are really just numbers. Natural numbers to be exact. Kronecker and many other famous mathematicians have claimed that we are born with the natural numbers (0,1,2,3...). Any which way you take it, any sane person would agree that the natural numbers are mathematics. Therefore, your program is just a number, and so is all that crap on those DVDs.
However, no matter how nicely you say it, no matter how many mathematical proofs/arguements you present showing that program and proof are the same thing... could the courts admit that not only the DMCA, but most previous copyright law contradicts the freedom of expression/speech given to mathematical expression? The government has countless contradicting laws. Laws that even conflict with the bill of rights.
The worst case would end up with the government removing the freedom of expression of mathematical proof. I might just have to go Unibomber/postal/high-school if something like that happened.
The best argument *against* "programs as expressive speech" I've read in recent days goes something like this:
Protected speech does not include speech that has as its "object" distinctly illegal content which is then acted upon.
For example, if I say, "Kill all the people living south of Main Street" and then I (or someone else) goes and does this (as a result of my speech), I cannot claim that my speech is protected under the first amendment. ("Hey, I was just saying stuff!")
I'm not sure if I've stated this clearly -- if anyone can improve upon this it would be most welcome.
But something like this -- my example above -- does bring up the essential conflict between *speech* and *action* and how they are related. It's one thing to say something, one thing to do something, but when the saying leads to the doing -- or when evidence can be found that doing has been done as a direct result of the saying -- then I suppose there is a legal problem.
Now, I'm aware that "causality" -- A *causes* B -- is a very, very difficult thing.
When we speak of "causes", we're really speaking of habit. There's no way to establish that A *always* causes B. But we can observe all the instances of A causing B and -- over the course of time -- we can say that, in most cases -- or at least in all observed cases thus far -- A causes B and will most likely continue to cause B ad infinitum.
But causality and habit move away from speech and into action. The two, I think, are seperate entities.
It would be interesting for the folks at the trial to bring in a literary critic -- or cultural critic -- and really examine the issues of what constitutes speech, what constitutes "code", and where "expressiveness" exists in the two entities.
As a writer writing fiction, I've often likened writing code to writing a short story. You have a problem -- complete the story, complete the code -- and you're forced to call upon your creative problem solving abilities to find the solution. And (and I know this rankles some, but I think it's true) some ways are better than others to solve a problem -- a short story or an application. We tend to qualify the solutions as "elegant" if they solve the problem in particularly interesting and clever ways. "Inelegant" might refer to a brute-force method of problem solving -- the problem is solved, but it wasn't pretty.
This applies to just about any creative endeavor (and I include coding as a "creative endeavor").
I've made the point -- to managers, teachers, students -- that oftentimes good programmers are wonderfully creative thinkers. They have to be in order to derive "elegant" algorithms or "clever" code. You can make a living brute-forcing your way through an application, but I'd bet money you won't derive nearly as much personal pleasure in brute-forcing as you would looking for elegant solutions to complex problems.
And here, I think, is where a case can be made for "expressive" content. If coding lacked "expressiveness" then we wouldn't need coding in the first place. We'd already have -- a priori -- a structure in place to solve every problem. All we would need to do is call upon the pre-existing structure to solve the problem. BLAMMO, it's done. (In fact, you could argue, that if this were the case, we wouldn't have problems in the first place. Everything would already be solved, written, and created. We'd live in a world -- much like Jorge Borges' Library of Babel where every text is already written using every possible combination of letters on any number of pages. True texts would exist alongside false texts, but there would be no way of knowing what is true and what is false. Think about it. Read the story -- "The Library of Babal" by Borges. It will severely whack your mind. I guarantee it.)
But because we don't have the luxury of pre-existing structures for every problem, coders must therefore sit down and frame the problem and begin to derive the solution. So here, I think, is where "expressiveness" comes in. Anything not already written needs to be "expressed" -- or framed -- in some way. There are multiple ways of framing problems and multiple ways of solving for single solutions. Some ways are better than others.
How then can you deny "expressiveness" in code? If, as I say, code lacked expressiveness, then there would be no code, no coders, no problems, and no need for solutions!
A couple years ago I had a job interview to be the webmaster at the Detroit Public Library. Part of the interview process was a skills test of the candidates' coding (scripting) skills. The task was simple enough: Parse through a flat-file database and remove all lines that contained a particular string of characters. Before I started, since the test had a time limit, I checked the size of the other scripts in the directory I was to save mine to (to get a rough idea of how much code I'd be writing - I hadn't been given the test question yet). Well, that proved particularly useless as the scripts were of such a variance of sizes that none could be used as an accurate reference (gotta love perl, no?). The other scripts ranged in size from 3k to 16k(!? I still can't figure out how someone could take THAT much code to do that..I just hope THEY didn't get the job). Well, my code was 3 functional lines (counting the shebang. 6 lines including comments) long. What we see here is that one concept can be expressed in a myriad of different ways. The very fact that this concept can be expressed at all, no less in so many different ways says that this isn't just 30 people banging out code to do this because that's the code that does it and there's no two ways about it. It's common knowledge among geeks that each person codes with their own "style". The rest of the world may not understand that, but compare it to artwork. If you tell 100 people to paint an apple for you, you're going to get 100 different paintings - each of which is unique, each of which is art, and each of which would quite easily be defended in the same manner as free speech should the farmer that grew the apple come along to try and charge them a fee for painting it. The same goes for code. That said, allow me to express my distaste for the manner in which the defense lawyers have handled EVERY step of this case. If you want to prove DeCSS doesn't exist solely to pirate, why not point out some other uses, hmm?? Why not point out that the MPAA hasn't (until recently) allowed (via licensing of CSS or whatever means) any successful development of DVD playing software on a non-windows non-mac platform? Why not point out that linux has however many million (I haven't checked since it was 14) users, and that those of them that have purchased DVD players have the right to be able to use them. FAIR USE REQUIRES THE ABILITY TO USE SOMETHING.
}
else { DIE; }
some examples of code as art include :
Obfuscated C Contest
Obfuscated Perl contest
5K contest
all of these contests are essentially defining code (in C, Perl, or HTML) as art - and art is speech.
Don't blame me - I voted for Howard Dean. http://dean2004.blogspot.com
Look at the Air and Space Museum. We hang the Spirit of St. Louis and Apollo there. There's a Thunderbird in the Smithsonian, if I remember right. Industrial museums abound (Chicago has a quite nice one).
In short, we see fit to exemplify fine examples of function in their own place, just as we exemplify form at art institutes. The beauty is in the function of the program; when it does its work is when it is at its most beautiful.
In the future, when our time is committed to a museum, there will be code in it. Just as we can look at Babbage's machine (where is it, anyway?), others will wish to see what we call our greatest accomplishments, and may judge them to be art. Why ignore them now?
"What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others"
Several friends of mine write reviews for DVD websites. Its quite common to write a head-to-head review of two or more different releases of the same film; for example a reviewer of the new Criterion release of "Spartacus" would be remiss in their duty if they didn't answer the question of if it was worth purchasing for owners of the previously released version. In this case a picture can paint a thousand words about exactly how the image quality on the two discs compares, which in turn means you need exact images taken from the two discs - readers don't want to know what a photo of one television looks like in comparison to another.
"I Know You Are But What Am I?"
This is the part I found interesting:
He started with a hypothetical: What if someone developed a program that could shut off the navigation system in commercial airplanes? What if someone developed a program that could shut off smoke detectors in public buildings? Surely, he said, the government could ban the publication of programs which were a threat to people's lives.
The US attorney is obviously argueing that writing and diseminating such programs is illegal. I don't think it is, in fact such programs must exist because it is necesary to turn both of these devices off at times. It is not the writing of such a piece of software that is illeagal nor the disemination, it is the breaking into a computer system to use it, and the use of it for a malicous purpose. This is, in fact, exactly similar to how DeCSS should be viewed. It should not be illegal to write, disseminate, or have the software, simply to use it in illegal ways. It's already a crime to rip a DVD and post it on the net, it's not a crime to rip a DVD and put it on your hard drive for easier viewing. DeCSS is a tool with both legal and illegal uses, but the crime is in the specific uses, not the tool.I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.
You're a researcher who wants to evaluate the efficacy of different compression algorithms-- compression vs. quality loss, etc
Hypothetical, perhaps a bit contrived, but you get the general idea.
This hypothetical situation has actually happened to me in a multimedia networking class. In the course of studying current video and audio formats, we spent a couple weeks on MPEG2. We needed practical examples to analyze what real-world encoders do on a range of real data. Those examples? A second of Blade Runner here, a second there, from several parts of the movie with interesting things happening on screen. DeCSS was used to obtain the data.
I believe this is unquestionably fair use: the material is being used in an educational setting, the quantity taken is very small relative to the size of the whole (two or three seconds out of a movie lasting 117 minutes), and there's no possible way it could harm the potential market for DVDs of Blade Runner. Moreover, this particular example requires the original digital data from the disk: you can't do analysis of MPEG compression (including things like coding efficiency and macroblock distribution) from a VHS tape!
An obvious counter to this is "you didn't have to use Blade Runner". No, but in order to analyze the performance of real-world encoders on real-world media, we need the output of those encoders (namely, the digital data from a DVD) by definition.
I don't think it should be a federal crime to show students how media compression techniques actually perform outside the classroom.
I must be missing something. It seems to me that the government admitted their case has little basis:
"Not one traditional copyright infringement has ever been attributed to DeCSS, and the movie studios admitted in the case that they could not produce even one example of an infringement due to DeCSS."
That seems to say that they don't know of any infringement cases. Let's call me hazy.
"Alter argued that the DeCSS case was similar -- the intent of distributing DeCSS is to promote violations of copyright law..."
Also,
"He stated flatly that the problem with digital works is that they can be copied."
I think the studios have it good. Nope, we can't show that it has ever happened. It could though, eventually, sometime, maybe, in a galaxy far, far away.
It almost makes me ill.
I don't think you'll find many pixels on the original Star Wars film.
The evaluation of an action as 'practical' . . . depends on what it is that one wishes to practice.
Can someone give a brief outline of the process that this case will go through. I'm guessing that oral arguments are for determining whether there is a case to argue. So what happens next. How does there being apparently three parties involved affect matters. If people don't get the results they desire what will the appeals route be (if 2600 win its would seem almost inevitable that the MPAA will appeal, maybe the gov too)
Special Relativity: The person in the other queue thinks yours is moving faster.
Fight Spammers!
1. natural language is considered to be expressive under the first amendment. 2. as programming languages achieve higher and higher levels of abstraction, they become more and more like natural language. evidence: first, take object code. Almost everyone that looked at object code in the raw would agree that it's not natural language and therefore not expressive. Now, take an assembly language, which is reduced to object code. assembly languages employ lexical shortcuts to make them more human readable; however, most people would still agree that assembly language is too concrete to be considered expressive. Now, take a high level langrage like Java. Java is reducible to an assembly language (Java bytecode). However, unlike lower level languages, it has requirements for both syntax of key words and also they order they come in the "sentence" (one line of code, a control statement, etc.). In this sense, Java is much more like a natural language than the lower level languages that we have looked at, yet it is still reducable into them. Now, look many years into the future. Given a technology which is sufficiently advanced, it is conceivable to write a program that would do the following things: a) allow a programmer to describe algorithms using natural language, and b) parse that natural language and create algorithmic structures that can be reduced correctly to lower level code. So where now is the distinction between natural language and source code? It has fallen away. My argument: the only reason that this case is even being argued is because of our level of technology. When we get to the level of technology when we can talk to our computer in algorithms and the computer will execute them, the source code speech argument will be moot, because it is idiotic to contend that a description of an algorithm in natural language written down on paper is speech but that same language fed to a computer to make a program is not. this now concludes my pithy argument. flame at will. -inq
This is really funny. I made a nice HTML formatted post, but the slashdot lameness filter prevented me to include any code example, so you can enjoy the post without the code.
I beleive it make the point of the article, but in an ironic way...
Go to <http://www.catseye.mb.ca/esoteric/index.html&g t;. You'll find various extraodinary humourous and clever computer langage and progams.
Befunge, for instance. This is hello world in befunge:
CODE REMOVED DUE TO DMCA^W LAMENESS FILTER.
See <http://www.catseye.mb.ca/esoteric/befunge/src/ hello.bf>
There are hilarious INTERCAL <http://www.tuxedo.org/~esr/intercal> progams too (I spent one night programming the first INTERCAL quine, and it have been probably one of the funniest moment of my life). Every one involved in programming should at least read the manual once in its life. In particular the page related to the precedence of operators. Take a look at the niceties of the language, like the absence of GO TO (replaced by a COME FROM). Check compiler flags, in particular the NOKIDDING one..
The canonical INTERCAL program looks like:
CODE REMOVED DUE TO DMCA^W LAMENESS FILTER.
See <http://www.tuxedo.org/~esr/intercal/intercal.t xt.gz>. Go to section 5.3 (search for 'perfectly clear'). PS manual is at <http://www.tuxedo.org/~esr/intercal/intercal.p s.gz>
The IOCCC is another place to see artistic programs <http://www.ioccc.org/years.html>
The ultra-classic 1984 winner
CODE REMOVED DUE TO DMCA^W LAMENESS FILTER.
See <http://www.ioccc.org/1984/mullender.c>
And this one. It is a C program that looks like a train. Is it funny ? No. Now look at it:
CODE REMOVED DUE TO DMCA^W LAMENESS FILTER.
See <http://www.ioccc.org/1986/marshall.c>
The ability of beeing able to see the source code made all the difference. Well, should have, but slashdot prevented me to post it. At least I can still link...
Cheers,
--fred
1 reply beneath your current threshold.
If code isn't expressive, then how can copyright law be applicable to code?
If code is copyrightable, then it must be expressive.
Either DeCSS is free speech, or there is no such thing as software piracy.
I contend that programs aren't expressive.
Hence they can't libelous or slanderous.
Here is the source code for a program I wrote. It's a shame that it's a bunch of meaningless non-expressive symbols.
------- BEGIN CODE -----------
#!/usr/bin/perl
$notlibel = endofrant;
The MPAA are child pornographers. They rape innoncent children, including their own offspring. They secretly hoard chemical, biological and nuclear weapons.
endofrant
;
if ($notlibel) {
print "We thing the MPAA are great";
}
--------- END CODE -----------
Only two things are infinite, the universe and human stupidity, and I'm not sure about the former. (Einstein)
Can we get a "-1 Wrong" moderation option?
Good point. If it is copyrighted, then the gov't has recognized that it is expressive speech. Obvious next step then is for someone to copyright DeCSS (or a derivative thereof), thus obtaining gov't recognition that it is indeed expressive speech.
Can we get a "-1 Wrong" moderation option?
Here's one: A movie reviewer takes a look at a movie just out on DVD. During his time watching the DVD, he realizes that there is a horrible technical glitch, or some endemic glitch in the video transfer. In order to demonstrate the problem, he would need to use DVD quality video. If he cannot take a clip from the DVD, but instead has to film in on a VHS camcorder, the quality will go down even more, and thus distort his (legitimate) beef with the movie.
--Rhadamanthine
Relying on ms security updates is careless, and sure don't help when the problem is with the ACME DSL gizmo or whatever.
Do you reeeeeealy believe defence against malicious crackers comes from anyware else than from the barrel of a smoking gun? 2600 is actually doing the non-hacker community a favor, although in private they'd hate me for saying it. And what on earth is malicious about DeCSS anyway? Are people really going to pirate a multi gigabyte AVI file over the net?
Excuse the Unicode crap in my posts. That's an apostrophe, and slashdot is busted.
This does not define fair use as an ABSOLUTE RIGHT, it mearly EXCLUDES it from the definition of infringement.
That is ridiculous. There either is fair use or there is not fair use. Excluding fair use from infringement means you have fair use. It's simple really.
Again, the producer is under no obligation to make te work available, even under "fair use"
The question is not whether the producer has to make the work available. The question is if the producer has the right to make it illegal for fair use. The producer does not have that right.
Many high priced periodicals are printed in such a way as to prevent copying. Does this interfere with your rights? No.
But if you develop a method to copy those periodicals for fair use, should it then be illegal. Further, DeCSS does not facilitate copying, it facilitates using. This would be like the publisher of the periodical saying you must purchase their special reading light to see the ink on the pages, and any attempts to make your own reading light are illegal.
My paycheck is printed on paper that prints VOID across the check if I copy it. I should call my employer and demand that they stop doing this because it infringes on my rights!
The point of the "VOID" is to allow one to know if a check is a copy. This has nothing to do with copyright infringement and everything to do with preventing theft. You analagy is complete nonsense.
-----
What is music? A bunch of symbols which correspond to certain sounds at a certain frequencies. When combined in a certain order you get a product (output) which may or may not be pleasing to the ear.
People with superior skills in writing music have written Handel's Messiah. Those with less skill have written "Jingle Bells". Both of these are examples of people expressing something contained in their soul, karma, a deep-seated "something". Some people hate Handel's Messiah. Some people like listening to it. And other become completely engrossed in listening to how the complex harmonies come together
It's the same with people who write code. Think about it.....
Unless I have been living under a rock for a while and "New York Times" is actually slang for a means of stealing telecom services, I think that his analysis is pretty hard to fault here. 2600 magazine has a long history ("Fun at Costco") of giving people instructions on how to knowingly break the law, and it's pointless to pretend otherwise.
Furthermore, two of michael's points seem to contradict each other. We have
Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required,
and
Apparently, in the attorney's world, once that lone copy is made, it pretty much automatically puts itself on the Internet with no further acts by any individual
Which misses the states' point about DeCSS -- it's uniquely dangerous precisely because it *isn't* a copying utility -- it's a decryption utility. Because of that, it makes it possible to "rip" protected content and convert it to all manner of different (more easily traded and recopied) formats.
I make no comment on the rights and wrongs of the case, btw.
-- the most controversial site on the Web
she stated that computer programs were expressive, and the judge asked her to explain....I felt the response was lacking.
This was discussed extensively in the Amicus Curiae briefs, for example, at
- Programmers' & Academics' Amici Brief in "MPAA v. 2600"
Case
- EFF/2600 Appeal Brief in MPAA v. 2600 Case
- ACM's Amicus Brief in "MPAA v. 2600" Case
He didn't use the "digital crowbar" metaphor, but insisted that publishing DeCSS was like publishing the combination to a bank vault in a newspaperThe EFF/2600 Appeal Brief in MPAA v. 2600 Case says
This does not define fair use as an ABSOLUTE RIGHT, it mearly EXCLUDES it from the definition of infringement.
I would be forced to settle for a low-quality analog duplication which would not serve my purpose at all. Therefore, DeCSS would be restricting my Fair Use rights as an educator.
Utter nonesense. I had the exact same lecture and in fact we watched the entire movie, long before DVD's or CSS existed. Again, the producer is under no obligation to make te work available, even under "fair use"
restrictions [on licenses] do not apply when they conflict with current laws concerning Fair Use
Many high priced periodicals are printed in such a way as to prevent copying. Does this interfere with your rights? No.
My paycheck is printed on paper that prints VOID across the check if I copy it. I should call my employer and demand that they stop doing this because it infringes on my rights!
The copyright and therefore fair use apply to the material not the media. You cannot claim that the MPAA has taken away your ability to use the work in non-infringing ways. There are still video tapes. You can still make analog copies of DVD movies. Most publishers will provided copies to educational institutions and individuals for reviews.
Si vis pacem, para bellum
The only thing more annoying than a Libertarian is an (un|mis)informed Libertarian
The problem here is that for most of us, this point is so intuitively obvious that it becomes difficult to express to others. Code, like any form of speech, is composed of elements that by themselves are of little value (a single letter or character, a pixel, tile, or small quantity of colored material, etc.). The expression comes from combining these elements into some functional form.
For example, an algorithm expressed in plain English is speech (I hope everyone can agree on that) - it is a description of one person or group's idea of how something can be done. That same algorithm, when implemented in code, doesn't suddenly lose its status as speech - it still has the same qualities, only in a different form.
To those who don't understand it, code is just nonsense. To others, code can be seen as an expression of a concept in terms of fundamental structures, just like a mosaic or a philosophical argument. Computer programming is just a medium that, like television, audio, or printed media, can be used to express ideas, entertain, educate, solve problems, or just waste time.
Looking specifically at DeCSS, it can be difficult to see the speech issues involved, just like if you try to judge the speech content of television based on watching one of those silly "reality" shows. If you step back and look at the potential for expression though, it becomes obvious that programming is a medium for speech and expression, and that speech takes the form of code.
Take a few thousand English words, and English grammar rules, and allow people to write code in it. It would not be very useful in practice, but as a means of demonstrating the expressive nature of code, it would be a fantastic education tool.
For example, Hello World in Perl:
#!/usr/bin/perl
print "Hello, world\n";
In "GnuEnglish":
Please use the GNU English Language Compiler, which is labeled as "gelc" and found in the directory called "/usr/bin", to read these instructions.
Using the standard output selected by the operating system, print the phrase "Hello, world" and then move the cursor to the next line.
Suddenly, explaining the expressive nature of code to a layman might become a little easier.
Information wants to be anthropomorphized.
You are splitting hairs pretty fine here. What you are saying is that it is not illegal, but I don't have a right to do it.
The fact remains that if I want to put a digitally extracted clip of a movie i have purchased on my FTP server for the purposes of education, I am not violating copyright law.
The MPAA is attempting to use the flawed language of the DMCA laws to ban the only tool which allows me to do this (DeCSS), with the intended result of extending copyright protection into areas where it does not belong (preventing criticism, educational use, and other exemptions to copyright law from being utilized).
You cannot claim that the MPAA has taken away your ability to use the work in non-infringing ways. I can, I do, and I have. It is not infringement to make a high-resolution copy of a 20-second clip from a DVD I purchace. It is not infringement to make a backup copy of equal qualitity of DVD's I buy. It is not infringement to make a second copy keep with my notebook PC for mobile use. If I own a second home, it is not infringement to make a separate copy and leave it there. All of these are examples of "fair use", and all are prevented by your reading of the DMCA.
And don't give me that bullshit about VHS or analog copies. When I make a backup copy, I should be able to expect it to be a copy of the data I purchased, which means the quality of duplication should be as near to perfect as current technology allows. Nowhere in the fair use clause that you cut-and-pasted does it state that the MPAA can require all non-infringing copies to be shitty.
Information wants to be anthropomorphized.
You were not listening to what the parent post was saying.
An example of fair use that requires DeCSS:
Suppose I am running an educational web site on the craft of film-making. To demonstrate the use of deep-focus lenses, I want to make a high-resolution 20-second clip from "Citizen Kane" available for download, so my students can see what I am talking about. DeCSS allows me to decript my "Citizen Kane" DVD, extract the clip, and save it to my FTP site. Doing something like this is 100% legal under current Fair Use laws. Without DeCSS, making this digital copy is impossible... I would be forced to settle for a low-quality analog duplication which would not serve my purpose at all. Therefore, DeCSS would be restricting my Fair Use rights as an educator.
Is the point starting to sink in with you now?
The content on the DVD is licensed to you with certain restrictive conditions
Yes it is, but those restrictions do not apply when they conflict with current laws concerning Fair Use. To insist otherwise is an attempt to extend copyright protection to areas in which the law does not provide, which the courts can (and should) (and probably will) shoot down.
Information wants to be anthropomorphized.
Since when is this a valid legal argument? IANAL, but I always thought "probably" didn't cut it as far as evidence goes.
Surely, [AG Atler] said, the government could ban the publication of programs which were a threat to people's lives.
As others have pointed out, DeCSS is not life-threatening; at most it's proft-threatening. I think a good "slippery slope" argument; extend it to its extreme.
This is a bad analogy. (Adopting the opposition's opinion for argument's sake only.) The purpose of DeCSS is to violate copyright law, allowing its speech component to be ignored. Alter is arguing that the NYT isn't permitted to cover the picketers, because the picketers were committing a crime.
[Alter] stated flatly that the problem with digital works is that they can be copied.
Actually, doesn't this beg the question of why the MPAA is going to digital at all?
The point Alter narrowly evaded evaded it (sic) is that the act of publishing a copyrighted work to the world is a copyright violation in the traditional sense, and is punishable under traditional laws.
This is something that needs to be driven home to the judges, because it serves as yet another example of the "less restrictive means" Congress is obliged to use.
I hope these are some useful points Ms. Sullivan could raise.
Another one: performing a comparative study between the quality of VHS vs. DVD vs. broadcast TV vs. etc. Perhaps that particular scene that best shows the differences in image quality is a battle scene in "The Patriot" -- a CSS'ed disc.
A big part of sitting in film school is watching movies. We prefer to watch them in the purest form we can because color, framing and grain of the film matter a great deal for the expression of the work. Most films we watched on FILM CELLULOID in classes or theaters. We weren't expected to bring them home and watch the celluloid.
We WERE expected, though, to watch the film on our own for private analysis to extract techniques (especially for learning Stop Motion Animation) and to really figure out what's going on. We had a film library with videos and Laser Disks (about 5 years ago, remember) that had to be checked out and watched in the library in these little porno-like booths. At the time, that's fine, but waiting in line to watch a film plain old stinks.
I also worked for the School's IT dept and at the time, Yahoo rated us the #1 Wired Liberal arts school in the country for our kick ass network and great intranet and internet access. We had this great technology (students could do their editing from their rooms calling up X windows from the avid machines in multi user mode, among other things).
I didn't realize it THEN, but i realize it now, that a digitized library of films from DVD clips in their pure form would be a great solution to the film library problem. the students can watch the film in the second best form (celluloid still rocks) which is FAR better than VHS copies or LaserDisks watched in little booths. Multiple students could watch HIGH QUALITY motion pictures for educational purposes if the DVDs could LEGALLY be decoded.
-----
DeCSS is also useful to evade country codes, which is also a fair use issue and also requires a same as original quality.
Even when quality can be inferior, it cannot be noticeably inferior without denting significantly into fair use right. The degradation introduced by xeroxing a book or using a VCR or tape is acceptable, because these techniques were at the background of the present legal situation. mandating degradation beyond that ( like shooting the signal with a camera ) should be seen as watering down fair use.
-- look, cheese ahoy!
I would like to ask the judge this:
0 00100001010101010101000010000101010101010100001000 01010101010101000010000101010100101000010000101010 10101010000100001010101010101000010000101010101010 10010101000010000101010101010100001000010101010101 01000010000101010101010100001000010101010101010000 10000101010101010100001000010101010111010100101010 0101010010101001010100101010
0 01010101010010101000100101010101001010100010010101 01010010101000100101010101001010100010010101010100 10101000100101010101001010100010010101010100101010 00100101010101001010100010010101010100101010001001 01010101001010100010010101010100101010001001010101 01001010100010010101010100101010001001010101010010 1010001001010101010010101001
0 10101010100101010001001010101010010101000100101010 10100101010001001010101010010101000100101010101001 01010001001010101010010101000100101010101001010100 01001010101010010101000100101010101001010100010010 10101010010101000100101010101001010100010010101010 10010101000100101010101001010100010010101010100101 010001001010101010010101001
One of the following is a binary representation of No Logo by Naomi Klein; the other is DeCSS:
0101000010000101010101010100001000010101010101010
and
1010100101010010101001101010010101010100101010001
Please tell me which one is a work of art, an act of expression or an instance of speech. Please identify which should be protected as Free Speech.
Just for shits and giggles, show him this:
0101001010100101010011010100101010101001010100010
What we have above is his doctoral thesis, his last ruling or a love letter to his wife. It may not be obvious to him, but there are some people (not including myself) who would be able to identify each of these instances.
It is beyond comprehension why this case is even being considered - it is obvious that the sole motivation to the DMCA is to protect profit in exchange for liberty and freedom. When discussions of this type are so clearly oppressive one has to consider what the *REAL COST* is. There are *VERY* few things that should be considered as reason to limit liberty - and MPAA profit isnt even approaching this group.
. So apparently something like this:
... is fine, while this:
"This is a scholarly discussion of DeCSS. We are a major media outlet, and would never encourage lawlessness, so this link to DeCSS is okay."
"Hey all you l337 h4x0rz, come get DeCSS and use it to copy movies and watch them automatically distribute themselves via the Internet!"
This is a very scary idea. Essentially you are creating a case where certain *people* are allowed 'free speach while others are not. This is a terribly slippery slope to a point where a person may not be officially sanctioned to speak freely. This is much different from the 'shouting fire in a movie theater' ban on 'free speach' that is accepted (maybe wrongly) as being a fair restriction to free speach - and drawing the legality based on the speaker, his motivation, his status, and probably (and very sadly) his bankbook.
For any American reading this: this is what happens when you abandon you allow your government to openly take bribes and sell your democracy to lobbyists and Corporations. It these people hadnt been given so much power you wouldnt see laws like these that begin to put profit and corporate interest ahead of citizens.
Here's an example of fair use that would require high-quality from the original:
If I want to research whether there was a second sniper at Kennedy's murder, or whether there was a UFO (or not) over New York last night, or I want to prove that I was at the Superbowl, somewhere along the thousands of spectators, I need the greatest possible detail to zoom in or out at pleasure, and accesible in digital format, to do whatever manipulations increase the quality of the tiny screen area I'm interested in.
I also think that the compromise in general is not a good idea for either part. It separates the difference between fair use and copyright infringement from the idea of content, and it goes over to quality.
What is copyright infringement and what is fair use, then? Is it "fair use" to go to a movie theater and film the whole movie with a handycam, because the quality is poor?
Freedom is the freedom to say 2+2=4, everything else follows...
I'm not entirely convinced about this argument, but then IANAL. In particular it seems a bit of a stretch from "original works of authorship fixed in a tangible medium of expression" to "expressive". OTOH, the categories of copyrightable work are clearly all expressive so maybe "expressive work" is a good definition for "copyrightable work".
In Minnesota law (this may vary by state) I could get no search results in the statutes for "lock pick". It may be completely legal to own these devices here. I did find a parallel technology, though. Apparently possession of a code-grabbing device (like the tape recorder Matthew Broderick used in Wargames to get out of the infirmary room) is prohibited, but only if there is intent to use it for an unlawful purpose. The penalty for that is up to 3 yrs in prison or up to $5k.
As to what can the government ban? Whatever it wants apparently. After all, they've banned certain weeds and decorative plant by-products for years-- and everybody loves it!
I do not have a signature
Suppose you're a Senator who really hates pr0n. In particular, you hate the fact that the MPAA gives R ratings to movies with full frontal nudity like Basic Instinct. And you want to claim that the famous Sharon Stone shot is sick and wrong, and the MPAA is poisoning the minds of America's youth.
So you prepare an angry video (strictly for your fellow Senators, of course) blasting the MPAA and including the famous shot. Without access to the original video, without CSS and without Macrovision, it will surely be blurred to such an extent that the message of youthful innocence lost by frankness about genitals will be lost!
So really, it's all for the sake of America's children. Tell that to the judge!
sulli
RTFJ.
Maybe they should work the angle that code is expressive because anything that can be expressed in code can just as easily be expressed in English or Mathematics. All it is is a sequential set of instructions and there have even been translators written to convert various programming languages from code to English and back. So by banning code you are banning sequential lists of instructions in English since they are one in the same.
A traditionally coded application, from Office through to Quake, the Linux kernel to Windows XP, doesn't really express anything. Its a means to an end.
Being a means to an end and expressing something are not mutually exclusive. The source code for any computer program is the ONLY complete and accurate description of what that program is and what it does. Not what it "should" do, or what the documenter was told it would do, but what it does.
A computer program, such as a compiled DeCSS, is a device. The source code for that program serves two functions. First, it instructs the compiler (or interpreter) on how to create the device. Does an episode of "Emeril Live!" contain speech? After all, Emeril is telling people how to do something - to cook a particular dish. He embellishes quite a bit, but then, most source code I see has quite a bit of commentary in it. Is only the commentary portion speech, so that "BAM!" is protected, but "Add a pinch of the garlic we just ground to the pesto base" can be censored willy-nilly? Code, as instructive, is speech.
Even if the merely prescriptive were not expressive, and thus not protected speech, code would not qualify as unprotected because, as I mentioned above, it is the code which describes the compiled system. I'm not legally allowed to carry a MAC-10. A MAC 10 is a machine pistol capable of fully automatic fire at a rate of over 20 rounds per second and holding a standard 50 round magazine. Is that sentence not protected speech because what it describes is illegal for me to have? Or is it protected speech (as the phrase "digital crowbar" would appear to be) merely because it's a really BAD description of a MAC-10 and isn't accurate?
In short, source code is expressive because it explains how to do something and because it describes something other than itself. The only thing that sets it apart is that many people don't understand it. However, last time I checked it was still protected to walk around speaking Lithuanian in the US.
The problem I have with this argument is where to draw the line. If you say that C or Assembly program is speech, then what about machine code (yet another language form)/binaries? What about engineering plans or architectural blue prints? What about the commmand you type when you use grep to search for something? It uses regex, which is also language... These are all valid expressions in their own languages but I have great difficulty referring to them as "speech".
I understand the argument that since programming languages are designed for humans not machines, it must be speech. i.e. a machine doesn't need your program to be written in C - it only understands 0s and 1s. We write in C/Perl/Lisp/(your favorite language) because that code can be efficiently translated into the language that a machine can understand and execute and at the same time be readable to us (well, in case of Perl, that may not necessarily be the case).
HOWEVER, the primary purpose of a program written in a programming languages is so that eventually it would be translated to machine code and executed on some processor and perform some task. (at least that's what happens 99% of the time). If you buy this argument, then ANY TYPE of automated instructions to machines (something as simple as moving a mouse, perhaps) have to be considered speech as well, and I'm not sure that there are a lot of judges willing to stretch the First Ammendment that far (to call almost everything that we produce in life as speech)
At any rate, I do believe that DMCA is evil and must be overturned, but I just don't think that using this argument that any computer code is speech is going to get us very far...
You can make no logical conclusion about DeCSS from this argument. Lives aren't in danger. Safety isn't compromised. This was probably in arguments and he was free to say anything--and apparently he did.
----------------------
1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?
A traditionally coded application, from Office through to Quake, the Linux kernel to Windows XP, doesn't really express anything. Its a means to an end. Theres no real intended statement, its a tool. Just as the words in my documentation aren't a novel, and my nicely presented flowcharts aren't art. They serve a definite purpose, and that isn't one of expression.
However, thats not to say code can't be an expression. If I write 'perl -e print 'Lawyers suck!'; some would argue that its just a bit of code, its just something that gets interpretted, its not art. Yet I might argue it is art. Art, and expression, is subjective. I could stand in front of the Mona Lisa and say 'Its just an oil based compound we call 'paint''. While technically correct, that doesn't stop it being art.
Just the same is true of DeCSS. On one hand its just a bit of C. On the other it demonstrates some deep rooted belief in freedom. Its subjective.
Of course, the difficulty arises persuading a court of law what art and expression is all about. Sometimes I'm very glad ianal.
http://twitter.com/onion2k
A bit theatrical, I admit, but here goes:
Obtain a copy of a well-known work of print fiction, a film novelization (something obvious, like "Star Wars", or similar) in a foreign language (it should be one that the major players in the courtroom, including the 2600 defense team, cannot read; e.g., Swahili, Polish, Japanese). This work should be scanned into an ordinary textfile. Obtain a copy of the same work as a DVD.
Obtain the services of a person who reads and speaks the langauge of the print work.
"Your Honors , this is an encrypted work, in that, as far as I know, no-one in this courtroom can read and understand it; It was deliberately chosen for this property." [display and pass around book]. "It is exactly similar to a DVD in the following respects: it is a work of art; it is published in a format that is not, without deliberately applied translation, usable to its current intended audience, in a word and for purposes of this demonstration, encrypted; It has been sold (not licensed) to its current possesser; It is protected by copyright. In short, it is functionally equivalant to this DVD." [display and pass around DVD] "The DVD in your hand contains the work. It is owned by me, not licensed to me. It cannot be viewed without deliberately applied translation (it could be read, as-is, from the disc, but doing this would result in no meaningful pictures or sounds being displayed upon the viewing device)." [If possible, demonstrate this by playing the DVD without decrypting it]. "It is also protected, even absent the DMCA, by copyright."
"The attorneys for the MPAA and the US AG would have you believe that decryption facilitates, or may even be a requirement for, piracy. This can easily be disproved. This file contains a complete and accurate rendition of this text." [demonstrate contents of file] "I will now procedd to demonstrate piracy." [have assistant begin making copies of the work on to floppies/zip-disks/whatever, and hand them to judges] "Your honors, pease note that, while none of these copies are in anyway decrypted, they are still saleable. I don't have to decode them to make them or sell them. In exactly that way pirates will make as many copies of the DVD as they like without being able to decrypt them. These exact copies will be just as saleable and more importantly, _just_as_useful_ as the original."
"Up to now, we have completely demonstrated the piracy and copyright infringement cycle of piracy from start to finish (excepting the actual exchange of cash for bootleg copy) without once even _mentioning_ DeCSS. The questions arise, therefore, What _is_ DeCSS (in other words, what does it do) and how does the DMCA affect it? The sections of the DMCA that are relevant to this program and this case do not once mention the copying of a work, merely its decryption. DeCSS and similar programs (including the ones licensed by the MPAA) merely allow the intelligible reading of the work. That is the sum total of their function." [introduce translator] "For the purposes of this copy of the work, this is DeCSS." [translator should translate a small piece of the work aloud] "Now, Your Honors, assume for a moment that this particular language was the only language in which fiction was published. This is exactly the situation with DVD's. All DVD's use the same encryption; And we have previously demonstrated that decryption is totally unneccessary for piracy. In fact, such decryption might very well decrease the utility (and thus the value) of the DVD, but this is an issue a bit off to the side at the moment. To return to the point at hand: assume that the language of this book is the only language that fiction is published in. Assume further that- a) it is a language that the publishing houses created specifically for this purpose, b) that publishing houses have made the posession of a license a condition of the learning or use (even as far as reading to onesself is concerned) of this language. In short, it is illegal to have this text translated to you by any other than a licensed translator, it is illegal for you to learn the language yourself to translate for yourself or anyone else without a license, and the license is revocable at the whim and pleasure of the publishing company. This means that, although you may buy the book, you may not learn to read it yourself, nor may anyone publish a translation dictionary of the language. This is DeCSS. This is the DMCA."
Yeah, it could use some work as a script, but the idea is there. Maybe the defense and judges will find it helpful. I hope so. This is getting out of hand...
It's Gerald Jay Sussman, not Hal Abelson. They have morphed in my mind since they posed for that composite photo on the back of the SICP book :)
microsoftword.mp3 - it doesn't care that they're not words...
I have another suggestion: Hal Abelson gave a speech at Ars Digita in which he went the other way- that literary expression, when it's good, uses algorithmic/programming elements. This breaks down the barrier between speech and code in an interesting way, that is, not by arguing that code is speech, but in fact that speech is code.
Here is an excerpt from the abstract for this talk:
"I contend that at this moment in history we are at the beginning of an intellectual revolution based on the assimilation of computational ideas into our culture. We have been programming universal computers for about 50 years. The practice of computation arose from military, scientific, business, and accounting applications. Just as the early Egyptian surveyors probably thought of themselves as experts in the development and application of surveying instruments, we have developed a priestly cult of computer scientists. But, as I have pointed out: Computer Science is not a science, and its ultimate significance has little to do with computers. The computer revolution is a revolution in the way we think and in the way we express what we think."
You can stream the talk (realvideo format) here, or you can download it here.
Bryguy
ps- another thought- the difference between source code and machine code is that source code is specifically designed to be comprehensible to humans, hence it is expressive of an idea rather than pure instruction.
microsoftword.mp3 - it doesn't care that they're not words...
Even worse than this, it becomes an extension of and American law through large corporations in other countries.
Now the artist (actually the company that owns his butt) comes to my country, my house, and tells me how I can or cannot use this in the privacy of my own home. That scares me.
It's no longer an issue of receiving a C&D letter from some company in another country (followed by my giving the letter a raspberry) but now the company has a local branch which happens to own a chunk of my ISP who backs up the C&D with my internet access cut. Or even worse, applications and followups using local laws.
That whole issue of fair use has clearly gone out of system, and that sucks. Fair use obviously now means that I can pay money to place the DVD in some sanctioned piece of technology to only view the movie. I cannot play frisbee with it, I cannot use it as a coaster, I probably cannot even write a review on my webpage that the movie sucked... Because nowhere in the new concept of fair use can I turn a paid-for-item into a dog toy...
Argle...
I donate all spillover Karma to the charity of my choice... Ada was still a babe despite what people may say...
Donald E. Knuth professor emeritus of computer science at Stanford University and author of the series of books The Art of Computer Programming , once said in an interview with Dr. Dobb's Journal: magazine:
MOD THE CHILD UP!
The question of software as a protected form of expression is a complex one, and in many cases the issues are idiosyncractic. Two people can stand in a museum and argue "That's not art"; "Yes it is." Similarly, people differ in their perceptions of software and its scope and purpose.
Let me report two bits of first-person anecdotal evidence.
I became a passionate software developer when I realized that writing software 'felt' like composing music. I had the same sense of artistic satisfaction, of creativity, of building something tangible from raw ideas. The aesthetic of programming became a dominant part of my thinking. Like many serious programmers, I labored over the artistic aspects of the development process: elegance of design, consistency, ingenuity of organizing and naming components, crafting clear and interesting comments -- bilding systems that were beautiful. Many hours and days were spent on tasks that can only be described as "art for art's sake": implementing details that had no practical requirement but yielded a more pleasing result, either in the behavior of the resulting system or, more significantly, in the expression of an elegant design in the source code itself. For me, it didn't matter whether an audience of hundreds or thousands could see my code. The expressive nature and issues were highly personal, and affected me in precisely the same way I feel when improvising or composing music. The expression is not for an audience, but for myself, and for the sake of an artistic result in itself.
"Fair use" is another doctrine that always strikes me as personal. Who is to dictate the boundaries of an appropriate personal use of a recorded performance, a piece of literature, a graphic image? In the eyes of an intellectual property attorney, for example, the purpose of viewing a DVD movie might simply be to hear the dialogue and see the pictures, so therefore some image degradation wouldn't matter. But as another poster has commented, noticing the fine details of shadow and light in a puddle on the ground might be just as important to one viewer as hearing the punchline is to another. Some viewers are passionate about noticing anachronisms and errors in films -- the little bits of telephone wire sticking up above the trees in a 16th Century period piece, or the out-of-era kitchen appliance in a WWII drama. These details require the best possible fidelity. Who can say that these are inappropriate interests, and beyond the scope of "fair use"?
In both of my points, I find that we are struggling with the age-old question of "what is art?" For me, the most satisfactory answer to this question, and to another tough philsophical question "what is science?", is this: "What the practitioners do." Art is what artists do, and science is what scientists do. When in doubt about where to draw the lines, look at respected members of each community, and consider their own priorities and methods as they invest their time and energies in their chosen disciplines.
In the case of software, I assert that software is (can be) a protected form of expression for this reason: Because great software writers view what they do as art, not as a purely functional and purposeful activity. If there are software artists, then there is software art. Similarly, if software can be pure science, a form of pure scientific research, then there is software science. If software can be art, or pure science, then it must be protected. We place creative limits on artists and scientists at our peril.
JMHO -- Trevor
-- We all have enough strength to endure the misfortunes of other people. La Rochefoucauld
sub gcp { join("\0",@_)=~/([^\0]*)(?:[^\0]*\0\1){$#_}/s;$1 }
then you are educated. If, as I have, you keep it in its own file and occasionally refer back to it for that sense of power and beauty-of-form it strikes in you, then you already know that programming languages are expressive. I executed the code to distill it for performance. I keep it alive in my mind by the occasionally re-read because it is beatiful.
Perhaps it is a programmer's thing. I don't expect everyone to understand but that's ok because I do. What isn't ok is people trying to tell me I am wrong about how I feel about a bunch of characters strung together.
Here's another bunch of characters strung together:
I would be very interested if someone could point out exactly why one bunch is "better" than the other.-CZ
I won't reproduce it here, but I will link to it. It can be found here, in the appendix of the Jargon File.
If ever a treatise was written about Code as Art, this is it.
May I suggest samples from the Obfuscated C Contest (then again, they may be beautiful in their own right) or some of the worst code submissions ever seen in a computer science course which probably compile but have no right to compile whatsoever....
-- Soruk
They'll pry my "Digital Duct-Tape" from my virtual hands when I'm dead!
(After all, it's really hard to remove.)
One line blog. I hear that they're called Twitters now.
If I spoke in order to write
I would write about speaking
If I stole in order to write
I would write about stealing
But I program in order to write
And thus my thoughts must be organized
Presentable and actually do something
Though a spontaneous poet I'm not yet
If I program and program all day
And like Lewis Carroll write all night
Soon a new Alice in Wonderland tumbles forth
(That mathematically-correct fairy tale)
And the art of poetry will be enhanced
Not by math but by logic, and then
The art of programming will be noble
And the court won't wonder whether
Programming can be expressive, Hooray!
I am a writer. On the side, to make a living, I am a programmer. The reason for my choice to be a programmer is not whimsical, but deeply rooted in my needs as a writer. As a writer, I need to be able to do for-pay work which does not exhaust my soul, leaving me no depth or clarity when I sit down to write. My whole life nurtures the art of writing, and I must be careful in what I choose to do with my non-writing life, if I want my writing to reflect anything notable.
In other words, I discovered that to write well, I write what I am. Of course, what I am can be metaphorized.
For example, I may choose to fund the art of writing as a salesman. Then, when I sit down to write, I write about conquest and competition and slyly leading my clients to the purchase point. While these abilities are demanded of a salesman, and many salesmen would then read my writing even if it were metaphorized, this is not what I am seeking to write. I seek to write lucidly, with well-organized thoughts, on various ethical issues.
As such, I find that my "day job" as a programmer is perfect! The task of organizing thoughts into a clean, presentable manner, is absolutely demanded of me during the day. When I sit down at night to write, the same techniques apply. All I have to do is research my topics (also demanded of a programmer) and then write, both synthesising (programmers call it cut-n-paste), and creating entirely new objects.
Note Larry Wall for a man who infuses poetry with programming... With these thoughts, could I be anything other than just another Perl hacker?
Give me some time, and this essay would be shorter and have more content. :-)
information is immaterial
Let's take Sullivan's example of code possibly being considered a poem. Have a look at the source for Crystal Space(http://crystal.linuxgames.com). This is a modern-day Milton. Jorrit has taken a "bee in his bonnet" and turned it into the most beautiful, expressive, and obvious code I've seen available in an Open Source project. This code should be studied by anyone wanting to write code, cross-platform or not. Just as Paradise Lost is studied by everyone expected to know the "classics."
As for the argument that it's not speech to anyone but hackers: Paradise Lost was not written in English. Let's jump back to before it was translated into our lanquage. Was it still a poem? Yes. Is C a lanquage? Yes. Is Paradise Lost functional? It was meant to be. It was Milton's guide to life... albeit symbolic.
Just because something is written in a language you don't understand, that doesn't give you the right to label it as anything but speech.
"I've seen plays that were more exciting than this.
Honest to god... Plays!" Homer Simpson
Ever listened to a Mozart Sonata? Ever played Quake? The sonata was written in very peculiar, highly artificial, notation that requires a lot of training to understand and even more training to write. Yet, could anyone say that music written in musical notation is not expressive? Quake is also written in a very peculiar, highly artificial, notation that also requires a great deal of training to understand and even more training to write.
To play Quake the creative intent of the writer is expressed by use of a tool called a computer. To listen to Mozart we can use another tool called a player piano. Before we can play Quake the prewritten instructions are compiled into instructions designed to be interpreted by the computer. Before we can listen to Mozart we must compile the musical notation into instructions designed to be interpreted by a player piano.
Both the computer and the player piano are completely automatic devices that are needed to express the creative intent of the authors of works written in highly artificial notations.
Where is there any difference between a computer program and a Mozart Sonata? The key difference is that most programs would lose much of their expressive power if "played" at the speed of a human piano player. This difference is in the speed of execution needed to bring out the expression embodied in the program. Never the less, just as one trained in musical notation can appreciate the beauty of Mozart's music without having to hear a performance of it, someone trained in programming can appreciate the beauty of a program just by reading it. In fact, it can be much more beautiful to the reader than to someone who just uses the program on a computer.
As a programmer who has read a great number of computer programs I can testify that I have had chills go up and down my spine, laughed, giggled, and experienced flashes of enlightenment from reading programs. The experience is much like reading a mathematical proof expressed as haiku. It took several years of study and practice of the art of programming before I could appreciate programs at that level.
That someone cannot see the parallels between programs and music is proof that they lack sufficient training in music or programming.
StoneWolf
An example where a perfect digital copy is absolutely necessary - any digital text.
With images and sound, the dropoff in quality is a gradual degredation, and it is hard to draw firm lines as to exactly when and where the image is no longer the same image anymore - or when the sound is no longer the same sound. Because it is a gradual drop-off there will always be some variation from person to person as to when that point is.
However, with a text it is a simple matter. You either have the text, complete and whole, or you don't have it. If I buy a cdrom with the complete works of william shakespeare on it, I need to be able to copy out the text of hamlet exactly. If the text gets mangled or corrupted in the copying process, it ceases to be the same text and therefore the copying process involved is insufficient for my rights of fair use. Hamlet's solliloquy is a given set of text, and as soon as you lose or change a few letters or words, it is no longer Hamlet's solliloquy - simple as that.
Now, if we take this one step further, and say that by its very nature any digital medium is a "textual" representation of audible / visible media, then the extension of the above becomes clear. In an analogue medium, there is no clear-cut way of transcribing an image or a sound exactly, and so a degredation of quality is intrinsic to the copying process. But a digital medium, by reducing any analogue media to a common set of binary values, it "textualizes" that medium - creating a set that is exactly reproduceable.
Now any cd or dvd player or computer acts as a very rapid "textual interpreter" reading and analyzing what is essentially a long body of written information and interpreting it into a form of sound and / or video. Now when we are sold a cd or a dvd, what we are purchasing is exactly that - a body of "text". We are not licensing the right to interpret that "text" as music necessarily, but we are purchasing that "text" as a finished product. So anything that prevents one from copying this "text" in its entirety is preventing fair use, because the resulting copy is no longer the same thing as the purchased product.
We might accept that there is no getting around a loss in quality when one makes a copy of a symphony from an LP to an audio cassette, but I think it would be absurd to accept that dropping a few notes here and there from a musical score of that same symphony would in any way qualify it for being "good enough" for fair use.
So in a nutshell, that's my perspective. Digital media have to either be exactly reproduceable or they simply are no longer the same thing.
There are a thousand forms of subversion, but few can equal the convenience and immediacy of a cream pie -Noel Godin
Coding is inherently expressive since two different chunks of code can do the exact same thing. Take for example the 7 line perl program recently posted. I would suggest a visual spection of the code would reveal expressiveness.
--
Jon - TheSpork
I can answer one of your MPAA questions.
...and why they think that I'm only licencing any movie I purchase and watch in my own home.
That's because you are only licensing the movie.
The explanation behind this is exclusivity and the separation of the content from the medium.
Exclusivity: I own my house, and my yard. Why do I "own" this property? Because the society I live in has mutually agreed to grant me rights to exclude people, animals, objects, and activities. The more rights I have to exclude, the more this is my property. Our society has mutually agreed to grant the creators of original work certain exclusive rights (read: "rights to exclude"), most importantly the right to create derivative works and to distribute copies. (The right to transfer those rights is also included.) By every legal definition, the artist owns the original work.
Separation of the content from the medium: The idea is that, legally, you can own the media while someone else owns whatever is "fixed" in it. The separation of ideas from tangible objects is a difficult one, and sometimes has to be redefined to fit a new medium. (Do I own the bits stored in RAM on my computer? Can someone else own their values, if only temporarily? The answer to the last question is "yes" according to case law.)
In order to let someone have possession of his work, an artist almost always "licenses" his work to the receiver of the copy. The reason they think you're only licensing rights to any movie you purchase is because you are. You own the media, but not the work - you only license it. That's how copyright works. Not only that, but they have the rights to license it to you under any terms they see fit to include until it is struck down in a court of law.
I got my Linux laptop at System76.
My computer science department had a lecture by Guy Steele on Monday about designing programming languages. The definitions he presented at the start of the lecture provide a good argument for why code is expressive. All computer languages fit the same definition as any human language. They have a vocabulary of primitives and rules for how to combine primitives. At its most basic level, computer code is speech, like anything expressed in any human language.
The judges might question why computer code should be considered as expression, and as such why it ought to be protected under free speech. To those of us who program, it's pretty obvious that computer code is expression. But the judges don't understand computer programming, and as such they can't understand the expression therein.
I would ask: to the judges all understand French? Chinese? Swahili? Pick a language that they don't all understand. Ought they then to allow legal restriction of the epxression of certain ideas in that language? Even questioning it seems to be saying, after all, it's just a whole lot of yammering and noise; if we don't understand it, it can't be expression that needs free speech protection.
-Rob
A hypothetical situation where fair user might require the original content in its full glory. You're a researcher who wants to evaluate the efficacy of different compression algorithms-- compression vs. quality loss, etc. Probably you do most of your research on some sample case. Your funding agency, however, wants to see how the compression works on a "real world" example. If your funding agency is not the owner of the copyright of material they want you to test it on, you need to have pieces of that material in its full, undegraded glory in order to perform your tests.
Hypothetical, perhaps a bit contrived, but you get the general idea. No infringing is going on-- no distribution whatsoever is going on. If I want to try this just for fun in the privacy of my own home (condudcting one's own scientific experiments is a tradition in this country that goes back to Ben Franklin), there's nothing to stop me. But if I'm prevented from making personal, fair-use, full-quality copies of the material, I can't do an experiment such as I describe.
-Rob
Why just the judges understand how code can be art? Hell, I don't understand how wrapping a motercycle with cellophane (or whatever that was) is art, but lots of other people seem to think so. Just because it doesn't sound like art to me doesn't make me think that the activity ought not be protected under freedom of expression.
Anybody who is a programmer and enjoys doing it has seen code which he thinks is beautiful, or at least elegant. Two different ways of doing the same exact thing, both functional, but one might be ugly, while the other will elicit noises of appreciation from good programmers. Ask any programmer, and I'm sure they will all be able to think of cases where this has happened to them. Just because the judges don't know enough programming to understand this isn't cause to restrict freedom of speech.
Saying that fair use copying creates a clear and present danger is disinginuous. IF something which might be used for infringing purposes must be restricted just to prevent that possible case, then cars certainly should immediately be outlawed in this country. Bank robbery getaways, hit-and-run killings, speeding on the freeway, all of these things are illegal and enabled by cars. Outlaw those puppies.
-Rob
The painting analogy is flawed. The MPAA lawyer would like you to believe that copying restrictions on DVDs are similar to you not being forced to let people into your living room just because you've hung a painting there. (Assuming I've interpreted the article correcty.)
A much better analogy would be that after you buy a painting, the artist may come in to your home and tell you where you can and can not hang that painting, how long you can have it up, and excatly when you can have it displayed. You would be forced by law to do exactly as the artist demands. This is what the MPAA Is doing with copy restrictions (and DMCA anti-circumvention) on DVDs. You have something which you've bought, but which they are now telling you how you can and cannot use it in the privacy of your own home. (E.g., "You cannot play this on a computer running Linux.")
-Rob
These people no doubt view themselves has having a place in history. Film, music, and literature are their legacy, and they all probably expect to be read about in history books in 100 years. It needs to be demonstrated to them how they won't, and how in 100 years we will be living in frightening, Orwellian culture where we cannot remember our past, or prove that it even happened (not to mention that we won't even know it's Orwellian).
One day I feel I'm ahead of the wheel / the next it's rolling over me / I can get back on / I can get back on
Read the article here, which is surprisingly accurate and non-biased.
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
fact(x)=x*fact(x-1)
int factorial(unsigned int x){
if ( (x==0) || (x==1) )
return(1);
else
return(x * factorial(x-1) );
}
I believe the code snippet is far more informative. Also, try explaining the distinction between tail recursion and other recursion without using some code (it someone has a scheme code example it would be nice, I can't think of one).
Anyhow, that is my two cents.
I have been a student of programming and even made a few bucks in writing computer code. I do not, however, consider myself to be a "programmer." That said, we have a number of programmers where I work and I asked them their thoughts regarding computer code as a form of human expression. All of these people are somewhat uninformed of the DMCA trial situation and so that makes them very good sources of unbiased opinions on the matter.
That said, I asked them the following questions:
Do you feel that computer code is a form of human expression?
They were all dumbfounded to consider computer code as human speech.
Would you consider the act of coding or the code itself as a reflection of your own creative or problem solving skills?
The consensus was "Absolutely!"
Would you consider your code or anyone else's code to be a form of "art" or human expression then?
Under that light, they agreed that it is an "art" in many respects.
Would you consider your code to be an emulation of your own individual or personal thought processes, problem solving skill or, in short, any reflection of your own personality traits?
The answer was a very strong "yes"
The final question: Would you consider computer code to be a form of human expression?
They were hesitant, again to answer that. They had to say "yes" but in the most basic of ways. A couple of them went so far as to say "yes but it is limited to the rules of its existance within the computer environment."
At that point, I asked them a question in Mandarin Chinese. They looked at me strangely (I'm a white guy and they didn't expect this) and then I asked the question again, in English, and they understood what I was asking. ("Do you speak Chinese?") So I stated, so even human languages have their own rules of expression don't they? They have to be limited to a common set of rules and words that understood within the context of the speaker and the listener...the transmitter and the reciever...the writer and the reader. So when posed with the question of whether computer code is a form of human expression, the answer became a much more simple and positive "yes."
This is the angle that should be used for the 'speech' part. Print a copy of the plain english version of DeCSS in the brief. Is that illegal? Would translating that into German be illegal? So why is translating it into C or perl be illegal? The MPAA can make a case for distributing a compiled program as non-expressive (at least with regards to encryption utilities) but code is just words on paper.
jello.
aka aron.
A random snippet of code I've got more of a problem with however. How do lines 20000 through 20025 of say Microsoft Word 2000 express something?
I don't see how you can provide protection for one while squelching the other though. Would every bit of code have to go through legal proceedings to determine if its expressive or functional? Should one of the most powerful rights, free speech, be thrown out with the bathwater because a corporation is worried about profits?
Chris Kuivenhoven is a thief, beware
Chris Kuivenhoven is a thief, beware
I agree, and that's the law that should be made. If one is committing a crime with DeCSS, then the penalty should be a bit stiffer. That would be an illegal use of something that was allowed for freedom. But to ban crowbars outright is certainly something that the MPAA will have a hard time living up to.
Do we ban normal crowbars? And if DeCSS is a digital crowbar, is there any cause to ban it too?
Any computer language is a highly specialized way of representing sequences of logic. The fact that these sequences can be read by a computer is irrelevant - functionally they are no different than a mathematical proof or a syllogism. They are a method of representing thought, and are hence expression. Even though you need mathematical expressions like E=MC(2) to make a nuclear bomb, and even though nearly everyone agrees that the ability of individuals to make nuclear bombs must be restricted, noone is arguing that we must therefore ban the expression E=MC(2) because it is just a functional bit of mathematical code and not "real" expression.
It Is the Nature of Information to Transgress Artificial Boundaries
Honestly my feelings on this is simple, if it was predefined in some sort of clause (like "by purchasing a DVD you the buyer would not under penalty of law, attempt to use it on other formats aside from the intended devices meaning your home DVD player under penalty of law") then the industry should not bitch about it.
Whats happening is a shame and is going to be a definite blow to the entire Internet should the judge rule against 2600. Think about what this case is about. Linking (for those who don't know) explain to me how linking to an article is against the law in the land where under 1st amendment right your entitled to free speech?
Laws are laws and there is no way in hell any judge should turn their backs on whats written unless they care to revamp the entire system. Regardless of who is putting money under the tables for anyone.
Hardcore Crypto
360 degrees of Karma
Imagine if literary critics could only quote from lower-fidelity works, say, text that has been artificially corrupted with "noise": "Hap7y fam7lies are all alik2, but ea4h unh3ppy f2mily is un3appy in its own way."
Would fair use include my copying all my DVD's to hard drive so I can easily play any one I want? This assumes I bought and continue to keep in my possesion the original DVD and I'm just storing the dvd on my hard drive for my convienience. It might make it easier to carry a movie with me when traveling if my laptop had both enough disk space and no dvd drive.
IANAL, so take all of this with your requisite grains of salt. That said...
I followed the AHRA when I was in high school and was disturbed to learn about what methods were used to keep digital copies under control. SCMS (Serial Copy Management System) is basically a flag in the subcode consisting of 2 bits telling the SCMS chip inside of whatever device is being used what generation of copy that the data is. A code of "01" means that it's an original and may be copied, while the recording device changes to code to the newly created copy to a "10". The next time it goes through a copy process, the SCMS chip tries to write a code of "11" and won't work. All streams of data that contain the code of "00" are able to be freely copied to any number of generations, as the SCMS chip won't modify this code. (And all of this is from my hazy memory of the details. The system works this way, but the codes might be changed around...)
There was major controversy over this at the time. However, it has proven itself to work fairly effectively. It keeps honest people honest and allows (relatively) unlimited copying for personal uses. As long as you retain the data on it's original medium, you can make as many copies as you want from it. Try to make a copy of a copy and you get screwed.
What this system allows is media-shifting (applicable under the AHRA and the Betamax scenarios) for personal use. Under the AHRA, you can still make custom compilations on digital media to give to your friends. What they have, however, is a digitally uncopyable copy.
For instance, I love Minidisc (and is a whole other posting for me to go off on). I like making custom compilations of my songs to take with me to work or to use in my car. With the DMCA, I can't do that with any of my movies. And that's the thing that irks me the most. (I know, what language!)
What I'd like to ask the MPAA the most is why I'm able to listen to my music anywhere in the world, why I'm able to make digital copies of my CDs onto DAT or MD for use in other parts of my life (like my car, for instance), and why they think that I'm only licencing any movie I purchase and watch in my own home. If it weren't for the fact that I know that these media companies (audio, too) are money grubbing fat-cats that want to dig deeper into my wallet, I'd be utterly confused as to why they did it this way. It's decidedly anti-consumer.
And that's what it should be all about. Where's the representation for us consumers? I write my representatives, but look how well that worked! The consumers are getting screwed. We definitely need a watchdog organization looking out for the consumer's best interest, here.
Thanks for the rant space, everyone!
My sources are unreliable, but their information is fascinating. -- Ashleigh Brilliant
I don't know exactly how it goes, but I believe that if you are found to be committing a crime and you are in possession of "burlary tools" at the time the penalties can be stiffer. These tools include lock picks, crowbars, and any other stuff that would aid in committing any crime, not necessarily the one that you were found to be committing. The restictions vary between states.
If someone has a clearer understanding of this then please chime in...
The problem is that coding isn't expressive in the same way as, say, poetry. You can't easily express emotion in Java. I'd say the closest "real world" analog to coding is a cookbook: Add two integers and a float, and multiply vigorously. It's a series of instructions to an audience (chef, computer) with the intent of re-creating a particular outcome (soufle, screensaver).
It's hard for the outsider to see that pure code can be expressive because they don't have the ability to interpret pure code to any meaningful degree. A master chef or a master programmer can look at the set of instructions and understand exactly what the author is trying to reproduce without actually following the instructions, but Joe User is forced to actually bake that cake or run that code to get the full effect.
Anyway, moving right along, what is "expressiveness," anyway? I'm pretty sure that something is labelled "expressive" if it can incite a reaction from the intended audience. If you laugh at a comedy or cry at a tragedy, the author has done their job of expressing themselves through their words. Then it could be said that code is doubly-expressive. It gets a very specific reaction from the silicon-based audience (display X shade of blue for Y seconds), and then the computer's reaction incites another reaction in the computer's operator ("Woah, nice color effect!").
All in all, I'd say that code itself isn't as expressive as code + computer, but that doesn't mean that an experienced person can't understand and be moved by computer-speak by itself. A cookbook in German isn't very effective unless you have something (er... someone) that can understand and interpret the language. That doesn't mean that it isn't expressive to those that can understand German, nor does the fact that non-German-speakers can't understand it mean it's not speech.
"2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others."
Well... all I can think of is for conducting a study that would inherently destroy the original. If you want to study specific intricate details of, say, the Mona Lisa, it would be best to do these studies on a copy (as exact a copy as possible) than to do it on the real thing. Different kinds of studies will require different degrees of exactness, but the most desirable copy is one that is exact in every detail.
I would argue that code is expressive because it is the result of scientific research and creativity which cannot be adequately expressed in alternative fashon. While the Department of Defense has at times been given the authority to surpress research for the sake of 'national security', that right is not customarily granted in other contexts, except perhaps in extremely specific cases. The validity of the study of encryption and decryption as a scientific enterprise is very clear; they have journals devoted to them, professorships granted, all that.
Indeed- it is perhaps worth noing that any artist (or for that matter any movie producer, in the context of a review) would be horrified by an inferior-quality version of his work being reviewed or presented in the context of a review! Many a painter, for instance, has been more than a little frustrated by the quality of reporductions in a newspaper or magazine review; and in the context of academic study, universities go to significant expense (screening rooms, astoundingly priced art textbooks, whatever) to present the highest-quality versions they possibly can.
hmmm, let me think.
$Disney = Money + Mouse;
It's perl. Is it a protest statement, or is it a device? Can a judge tell me?
I agree, the dramatic readings and DeCSS as poetry are too long. We need a computer program that you can read as a sound bite, that executes, and still gets the point across. Here's my lame attempt. One up me!
*Quoted from above*
2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.
-Any use in which the digital technology, or application of that technology is studied or compared would absolutely require access to the work in its most modern, digital, and uncorrupted form. For instance, any comparison of the compression or capabilities of different audio formats (mp3, wmp, wav) would concievably require the unadulterated source. When you're analyzing artifacts introduced by the digital encoding scheme (don't tell me you other audiophiles don't care....) reproducing the work in it's most authentic format is essential.
-However, I'd really question the concept that a qualitative degredation of the work in question is somehow required for fair use. It would seem that US Code, Title 17, Chapter 1, Section 107 limits fair usage only according to four principles:
(begin quote)
(1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and;
(4) the effect of the use upon the potential market value of the copyrighted work.
(end quote)
(The above work copied in whole from the reference provided at http://www4.law.cornell.edu/uscode/17/107.html usage is intended only for scholarly discussion.... *smirks*)
-None of which seem to include the *quality* of the used media in any case.
Nietzsche on Diku:
sn; at god ba g
:Backstab >KILLS< god.
If the objective was to paint a landscape, no artist would paint it quite the same as this painting would be an expression of him/her self- although of course there would be similarities from previous inspiration and similar teachings. You can say that painting was inspired by so and so or they went to a particular school of teaching because it has this feature, or that texture etc.
Likewise a computer programmer has an objective and no two computer programmers go about this the same way and the end result is expression of him/her self. Again there would be similarities from previous inspirations and teachings. It is possible to look at a piece of code and say that he was inspired by so and so because he used this and indented it like that etc.
An example from the book The Cuckoo's Egg by Cliff Stoll talks about how he tracked down the hacker through the hackers expressiveness in their code - i.e. the hacker was using Berkley style Unix etc.
The source code submitted to the Obfuscated C and Perl contests bypasses even that shaky argument. That code is not primarily intended to accomplish anything practical. Its primary purpose is to express humor, and said humor is experienced by viewing the unperformed and uninterpreted code itself.
Below is my answer to the first question: What does code express and why it should be protected: You sit down in a theatre to view an emotionally moving movie. Later, looking at the physical film and the projector won't reveal the underlying beauty you just saw. The written screenplay doesn't show it. The sets, the costumes, the design artwork, the sound recordings, don't reveal the whole picture. Yet the components that make up a movie are covered as being expressive works which are protected by copyright law. The MPAA will attest to that. In a movie, there is a wonderous, almost intangible blend of variables that, when combined, produces that touching light on the screen. But the magic only happens at showtime. At showtime. Computer software is very much like a movie in this regard. Like a screenplay, source code is written with a purpose in mind. That purpose is revealed at "showtime" - when the software is run. What transpires at "showtime" is not a simple function of some non-expressive element, but very much a result of the specific expression of the software writer, and is as reliant upon the underlying hardware and media, as a movie is on the film and a projector. Grasp beams of light or try to count bits in silicon memory. Are they expressive? Over time, a collection of photons in one instance, or fleeting bits of electricity in the other, ultimately are expressions with purpose - their very coordination and existance focused into being by design. The underlying combinations of expressions that brought about the "showtime" cannot be removed without a total loss of the final expression. Educational software I have written may look elegant in source code to me, but it's not beautiful until it is run by a handicapped child, who uses it to express herself and touch the world. The smiles happen at showtime whether it's at the movies or using software. P.S. If DeCSS were not expressive, how would the MPAA know what it's purpose was and would it matter to them? If software wasn't expressive in any form, it therefore shouldn't be covered by copyright, as copyright only covers expressive works. Think Microsoft would like that rationale?