Report From The 2600 Appeal Hearing

Yesterday in a toasty courtroom in lower Manhattan, Stanford Law School dean Kathleen Sullivan faced off against lawyers for the world's biggest movie companies and a lawyer for the U.S. Justice Department with oral arguments in the appeal of the 2600 case. One of the three judges hearing the case -- Jon Newman -- appeared to be the designated questioner. He asked nearly all of the questions in both this case and the ones heard earlier in the day. He probed both sides about equally, trying to find flaws in the arguments of whoever was speaking at the time. I'll cover the hearing below, and there's possibly a few areas where the Slashdot crowd could assist in the case.

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.

Comments

What about the real "intened purpose of DeCSS"

[smartin]

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.

Re:What about the real "intened purpose of DeCSS"

[larien]

This is why I believe DeCSS should ultimately win out. There is a valid reason why it should be allowed (to whit, allowing users to view DVD's in open source OS's).

However, I don't believe that copying DVD's for piracy should be allowed, which is what I think the MPAA et al are worried about. The trouble is, as it says in the article, the pirates just do a bit-to-bit copy and DeCSS doesn't come into it. Where the internet comes in is that an unencoded DVD is simple an mpeg file which could be transferred across the internet. While current network bandwidth's aren't large enough to cope, it wasn't that long ago that trading music on the 'net wasn't a viable option but Napster has proven that it can work now. Give it a few years, and unencrypted DVD on the net will become comparitively commonplace.

However, even if they manage to band DeCSS, there will still be ways to grab the film and encode as an mpeg; all you need to do is put a filter between the app and the screen to capture the output. You'll miss out on the extras (subtitles etc), but you'd miss that with a decrypted mpeg anyway. The alternative is, of course, DVD images (similar to .iso images) which, again, don't use DeCSS.

With some luck, the judges will realise that piracy of DVD's will happen with or without DeCSS and they'll throw it out.
--

If computer programs aren't expressive speach...

[jamus]

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:

For example, computer programs and most "compilations" may be registered as "literary works"

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.

code as art form - analogy to bridge building

[nneul]

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.)

Re:code as art form - analogy to bridge building

[nostrodecus]

i would play this up.
coders are, essentially engineeers, and what we work on are essentially engineering problems. our job is to come up with the solution to those problems. as we all know, any given problem (e.g. connect two sides of a river) has numerous possible solutions. (build a suspension bridge, build a tunnel, build two docks and buy a fast ferry). a factor in the solution is how asthetically pleasing the solution is for the inhabiatants of the area (the bridge is really pretty) and how pleasing it is to your engineering peers (o.m.g. you distributed the load to the 2 central columns using a mesh that looks just decorative).

similarly with solving a problem in code. you can brute force a solution and that will get the job done, but no-one who ever looks at it your code will be impressed. each extra level of ingenuity you work into your code, each clever way of solving a problem, or each really elegent piece of your design speaks to another programmer.
in the end the programmer cannot describe his work (his art) in english. he cannot say "oh how clever am i, i used design pattern X here and that gives me a 30% performance improvement".

instead he publishes his code, his peers see it. and they know.

Re:no "chilling effect"?

[FreeUser]

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.

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 ... again.

no "chilling effect"?

[ethereal]

I thought this was interesting:

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.

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!

Re:no "chilling effect"?

[smillie]

The argument about how a DVD that eventually falls into the public domain will be accessed struck me as a particularly powerful one.

This means that that they have stated in court that there is a legal use for DeCSS - for decripting movies after copyright has expired. Not only is there no known use of DeCSS for pirating but there is real reasonable use for the code.

Re:US process

[Royster]

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.

One point to stress more forcefully

[haggar]

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.

Re:One point to stress more forcefully

[SlippyToad]

How I wish this were earlier in the week, when it seemed I had infinite mod points. If demonstrated, this point could be made to show the blatantly anti-competitive nature of the MPAA's action and ensure an antitrust investigation. Not only does CSS prevent people from making DVD players, it would make it possible to lock out amateur DVD distributors -- putting their own work out on DVD. I see the same sort of thing looming with SDMI and other secure music distribution technologies.

The RIAA and MPAA have to be aware that with digital technology, the quality of recording and film equipment that used to cost tens or hundreds of thousands of dollars now costs hundreds of dollars, and amateur filmmakers and musicians now have cheap personal access to what was state-of-the art twenty years ago, and most of that technology can be installed in a home computer. With the equipment I now own, which costs about what a personal PC does, I can make a multi-track recording of the same quality that you would find in the store, burn it to a CD, and sell it all without ever having to haggle with a record company. Most people I've played it for cannot tell the recording fidelity from that of a commercial CD.

I cannot help but notice that most anti piracy mechanisms will, if widely adapted, shut me out of the current standardized market. Coupled with that I see currently established artists openly defecting from their recording companies to distribute their materials for free online (napster, etc). In every way possible, digital technology empowers us to cut out the expensive and unneccesary middleman when we want to express ourselves. The DMCA is just a feeble attempt to turn back the clock and make it all like it were. Please couldya?

Re:There are laws for "Burglary Tools"

[TheCarp]

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

Link to the New York Times?

[Trinition]

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.

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?

Re:What about a bomb?

[DrgnDancer]

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.

Copywritable == Expressive

[elbuddha]

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.

Programs as speech

[clare-ents]

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 -----------

Do the lawyers read the briefs?

[swm]

Do the lawyers read the briefs before they argue the case?

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 newspaper

The EFF/2600 Appeal Brief in MPAA v. 2600 Case says

For instance, the District Court analogized the injury due to publication of DeCSS to the publication of a bank vault combination in a national newspaper, indicating that such publication could be restrained. Universal at 315. The District Court, unfortunately, is mistaken. In Chicago Lock v. Fanberg, 676 F.2d 400 (9th Cir. 1982), the defendant was sued on a trade secret theory for selling books that contained lock key codes that enabled persons to more easily duplicate keys to plaintiff's locks. The Ninth Circuit found that these books could be published because the lock key codes were obtained through reverse engineering.

What examples of fair uses absolutely require..?

[metis]

First and foremost, time shifting require the same quality as the original. DeCSS is about DVD, but the precedent will come haunting us with HDTV and other boadcasting models in the future.

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.

Some are more equal than others?!?

[SubtleNuance]

. 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!"

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.

Expression through code

[onion2k]

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.

Another tactic- all speech is code

[abe ferlman]

This is such a great argument. This forces the MPAA to pit its absurd assumption against another one, that programs should be copywriteable, so if the MPAA wins this argument at this level of appeal then the entire non-free software industry will be shitting a brick. Not the best argument logically, but strategically it's pure genius!

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.

Academic use -- compression evaluation

[rknop]

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

Re:Academic use -- compression evaluation

[dachshund]

A friend of mine is an organizer of a major independent film festival. One of his jobs has always been to create "clips" tapes of present and past films that are sent out to attendees. In the past, they have sent VHS tapes, and obtained their material from videotapes. Now they are trying to send the material as DVDs, and consequently need to rip the clips from the DVDs themselves.

This is one of a million examples where 90% quality is simply not enough. Nothing is being done to violate traditional fair-use in this case, but if the MPAA has its way, this sort of application could very well become impossible.

Code as art

[rknop]

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

Painting analogy flawed

[rknop]

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

Wonderful to call DeCSS a "Digital Crowbar"

[slaytanic killer]

Do we ban normal crowbars? And if DeCSS is a digital crowbar, is there any cause to ban it too?

Re:Fair use

[multicsfan]

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.

Re:Fair use

[racermd]

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!

Re:Fair use

[pavonis]

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.