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.
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.
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.
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.
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.)
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
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.
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.
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.
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
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
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.
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.
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!
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"
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
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.
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 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.
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.
Fight Spammers!
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)
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
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!
. 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.
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.
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
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...
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
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
Chris Kuivenhoven is a thief, beware
Do we ban normal crowbars? And if DeCSS is a digital crowbar, is there any cause to ban it too?
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
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.