MPAA vs. 2600 Transcript

Cryptome has a full transcript of the recent 2600 appeal hearing. Good reading - you can see the arguments each side made in their own words, and see the judges' reactions to them as well. Update: 05/10 12:34 PM by michael : The court has also put out a list of further questions for both sides to answer in written briefs, and given them additional time in which to answer - see the court order.

Comments

Re:Is this intentional?

[Anonymous Coward]

Sort of like nintendo making gmaes that only work on nintendo? how dare they!

These are only freaking movies

[Anonymous Coward]

It kills me how much BS is coming from these trials, both this trial and the napster thing.

If our judicial system cannot see past these apparent 'control mechanisms' made not by a democractic body, but by "shady" businessmen, how can I feel good about a future where we could possibly replicate anything such as food or shelter, but cannot because of a farmers union or construction corporation.

If they worry about people "stealing" their movies or music after they already made billions on them, maybe they are in the wrong business.

Re:These are only freaking movies

[Bobo the Space Chimp]

The judge shuts down those arguments by pointing out how real the massive infringement is, and how you can still get fair use, just not in the most technologically recent way. You can still videotape it, etc.

Re:Is this intentional?

[Anonymous Coward]

The material is MINE.

No. You own a piece of plastic. The material in question is the creator's artistic expression and your permission (license) to use it (private, not fair use, btw) is bound in the key. The MPAA has only to demonstrate that it is not unreasonable to expect you to suffer to suffer the cryptographic restrictions imposed on copying, lending, etc.

Tools are illegal?

[Anonymous Coward]

The main problem with the lawsuit against 2600 and those who would disseminate DeCSS is here (emphasis is mine):

Alter: I will happily address the fair use component in a moment, Judge Newman, but my point is this. DECSS is a digital crowbar. It, in the vernacular of defendants, was created for the sole purpose of ripping open DVDs so that would be fair users perhaps, infringers more likely, can make copies of these films.

Sullivan: ...and this is not a case about a digital crowbar, or if it is, it's a case in which the government has tried to impose, in violation of the First Amendment, strict liability for having a crowbar, whether you're a carpenter or a thief. First Amendment does not allow that. Thank you very much.

According to this arguement, gun manufacturers and pro-gun web sites should be held liable for possible future infractions. Having a tool is not illegal. How many of us have a copy of the Anarchists Cookbook? Some people may not like the idea of others getting ahold of some of those instructions, but that doesnt prevent me from owning them. Or from linking to them. If I USE some of those and hurt someone else, then I'd be prosecuted. But not until then. And it should be the same for DeCSS.

Re:Tools are illegal?

[ethereal]

It's interesting that possession of the MIT Guide to Lock Picking isn't proscribed, though, since most people reading it probably aren't licensed locksmiths. DeCSS is as much the instructions for lock picking as it is a lock picking tool, and natural language translations of DeCSS are instructions only with no functional ability, just like Prof. Felten's research paper on SDMI. It's too bad that the courts and Congress haven't yet realized that not only is the line narrower and fuzzier than they think, but that in fact there really is no line, just a smooth continuum between tool and description.

After all, with a sufficiently advanced natural language parser and some goal-seeking software, a machine might be able to take Prof. Felten's paper and directly crack SDMI with it, by constructing the necessary program and then using it.

Caution: contents may be quarrelsome and meticulous!

Re:Tools are illegal?

[Krow10]

Having a tool is not illegal

Having some tools is illegal in some cases. Try carrying (in the U.S.) some of those tools described in the MIT Guide to Lock Picking without being a licensed locksmith and you will find out quickly enough. So, it would have been better for the MPAA lawyer to have described it as a digital lockpick rather than a digital crowbar. Joe Sixpack has a legitimate use for a crowbar.

Of course, the two most important points in the whole DeCSS/DMCA mess are that (i) I have a legitimate use for DeCSS, in that I would like to play DVDs on my non Win/MacOS Box; and (ii) CSS does not prevent those seeking to violate copyright from making copies of DVDs anyway.

Cheers,

Craig

--

Re:Is this intentional?

[Anonymous Coward]

What you just described is called product tying, which is illegal under current raketeering laws. I wish they would at least hint at this fact for the judge. They are saling a product which requires you to make another, very selective purchase, to take advantage of it. A product, which they too have their fists in.

I'd love to see someone explain why this is not tying or racketerring!

Re:Heh..pickles?

[Anonymous Coward]

I thought "Schindler's List" was in black-and-white...

Except for the pickle scenes. And those are only on the director's cut.

Intriguing

[jd]

Although this does not have anything to do with the arguments, themselves, 2600 might have done better to find a lawyer who -didn't- keep interrupting the judges.

Judges tend to like respect, and it's not unknown for cases to swing on such respect, rather than merit. (Methinks this is one reason, but ONLY one, that Judge Jackson absolutely mauled Microsoft. Treating the judge like an idiot is not going to win you any points.)

If this appeal goes against 2600, I'd be willing to guess that courtesy was a factor. Sure, the MPAA has a lot of prestige, status, etc, but a good lawyer can always turn that to their disadvantage. Pride comes before a fall, and an arrogant remark or condescending tone can easily finish a trial, really quickly. "Contempt Of Court" can be far deadlier words than any verdict.

Re:Intriguing

[CMiYC]

Yeah, but I think you also have to consider that Sulliven is speaking in plain english terms. It seems to me that the MPAA lawyer Sims is trying to confuse the Judges. Someone else mentioned that they felt since the judge had given her extra time that maybe they were willing to listen to her. I didn't get the feeling that the judges felt disrespect. Although, I wonder what kind of emotion she spoke with. It seemed like a few times she was whining "...but Judge--".

I think it would have been great to see this in real life. I'm very curious to see how the judges' facial reactions went. The text makes it hard to see who "spoke to" the judges in the best fashion.

I did notice that Alter and Sims seem to enjoy talking for huge amounts of time. They seemed to have an arrogance in their words that Sullivan lacked.

---

Re:Intriguing

[mlc]

As someone who was in the courtoom, I didn't see the problem of lack of respect that you describe. Sometimes transcripts are not entirely able to convey what was going on.
--
// mlc, user 16290

Almost there...

[bill_mcgonigle]

And the fact that a coporation could lose money from you exercising your right to free speech is absolutely no argument whatsoever

In fact, what we're talking about is more serious: a corporation making money specifically by restricting your right to free speech.

Re:uh huh

[MrBrklyn]

NY Dental School no long has text books.

Your next.

Ruben

Re:The Fair Use Manifesto

[MrBrklyn]

||According to the letter of the law, distributing a
tool (and, according to Kaplan, linking to a distributor) is illegal, although writing your own tool is not.||

That was basically what Bender said, who is a Law professor at NYU who was interviewed in the Village Voice. The letter of the law is unconstitutional because the restriction of access can not be cleaved from the copyright restrictions of an item. Any license which restricts the access to a copyrighted material illegally restricts the purchaser of their inalianable constitutional rights by illegally extending copyright.

In other words the Jugde is saying that Fair Use is different from legal non-infringing uses. The Lawyer should have said, - no - Fair Use IS ALL non-infringing uses, and small quotes of text from the press is only one example of that protection which happens to be handled in case law. The presumtion of the Constitution is that, as property, all rights not expressly given to the copyright holder remains the inalianalbe rights of the public. And Congress can not extend those rights without a Constitutional Amedment.

Fair Use - is the key too all our political freedoms. The word copyright should not be used. The word Monopoly should replace it.

or Copyright Monopoly

http://www.nyfairuse.org

The Fair Use Manifesto

[MrBrklyn]

The Judge asked for examples of violation of Fair Use and the Panel could not come up with an answer to satisfy the Judge.

If the Judge can't protect the property rights of of ordinary citizens, then a fundemental education on Fair USe needs to be undertaken by the Computer Community. I MUST be able to play a DVD on a common kitchen blender if I want to, and be able to publish the information permitting me to do so. Anything less is a breach of my basic constitutional rights.

Linux would not be able to be leagal created today because of the obstruction of Fair Use and Spyware.

They bneed to look no further than Students being FORCED to buy all their books on DVD at NYU to see the obvious far use implications.

The arguement is very simple and the EFF et al have screwed it up.

Copyright is a balance between users property rights and freedom of speech rights, and the limited franchise given by the government to individual creaters. No License can leagally further restrict the owner of a media without violating our civil rights. You can no more agree to such a license then sell yourself into slavery. It just can't be done. The DMCA is uncontitutional because it prevents access of the owner to the information contained on HIS/HER Media. They Own the media and have a constitutional right to sue it in any way they see fit, short of an actually copyright violation.

Congress can not pass a law limited these basic rights any more than it can pass a law to prevent the free press. The secure use of our property within our homes, and the freedom to speak about reverse engineering is our inalianable rights.

END of Discussion.

http://www.nyfairuse.org

Re:The Fair Use Manifesto

[ethereal]

Just to play the devil's advocate for a moment: the MPAA have no problem with you writing DeCSS for your blender, and using it to view your DVDs. They just have a problem with you distributing DeCSS for BlendOS on the Internet.

I agree with you that the effect of this use of the DMCA is to prevent fair use, because few people have the time and energy to independently reverse-engineer DeCSS, and thus there will be a considerably greater impact due to the DMCA than otherwise could be predicted from the text of the law, but the MPAA doesn't think that's their problem :) According to the letter of the law, distributing a tool (and, according to Kaplan, linking to a distributor) is illegal, although writing your own tool is not.

Caution: contents may be quarrelsome and meticulous!

Re:The Fair Use Manifesto

[ethereal]

You make some very good points - bravo! Hopefully the courts will see it your way :) From reading the transcript, it sounds like the justices were looking for a way to rule very narrowly on 2600, rather than on a particular instance of using DeCSS for fair use, so I'm not sure that they will be overturning the law on this one. Another test case might be necessary.

Caution: contents may be quarrelsome and meticulous!

Re:The Fair Use Manifesto

[Malcontent]

IF Rush Limbaugh and G. Gordon Liddy are journalists then Eric is one too.

Re:The Fair Use Manifesto

[QuantumG]

oh I totally agree. There's this whole lot of crap about fair use going on here that is totally stupid. They should of walked into the appeal and said "look, my client is a journalist, by linking to this code they were demonstrating how useless this encryption was, that is exactly what people read my client's magazine for. By enjoining my client you are censoring a journalist and rendering his magazine less readable."

Re:The Fair Use Manifesto

[dachshund]

On that subject, it's only a matter of time before content providers begin selling their wares with some kind of license (be it click-through or paper.) At that point, a lot of these issues become moot, don't they?

Re:Free speach?

[jeffry_smith]

> Free Speech in this country, as defined in FEDERAL contexts is for criticising only.

Strange, I didn't see that in the Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nope, says congress shall make no law abridging the freedom of speech. Doesn't say no law abridging the freedom to criticize.

Not in copyright law it's not

[TBone]

The fact that it can be used on platform which, for whatever reason, are not supported by the big DVD vendors, has at least two important bearings:

One, it shown a major non-infringing use for DeCSS. Honestly, if it weren't for this reason, I don't know what grounds there would be for the software to have an appeal basis.

Two, without DeCSS, the MPAA and DVD Consortium have locked us into a certain set of choices for tools to play our DVD's with, which is against copyright law - a copyright can not be used and enforced in order to prevent consumer choice in the tool used with the copyrighted item.

Understanding and application

[TBone]

The problem is, much of the copying anf Fair Use law is written with regards to audio media, not digital media. In order to properly form an argument for or against the digital copying uses, the judges need to have a very clear path of how digital copies relate to copyright laws that were only written with analog audio media in mind. As someone in another post mentioned, it may not be that the judge doesn't himself understand what is being asked in the question, but is merely clarifying a hole in order to solidify his argument

Re:Free speach?

[TBone]

The 9th circuit court in California has already determined that software is free speech. Free speech refers to ANY expression of opinion. Print is free speech too, and that's not "speech".

And the fact of the matter is, the MPAA and DVD Consortion have shown exactly ZERO (None. Nil. Nada. Zip. Less than one.) cases of piracy of DVD's due to DeCSS. So what exactly are they fighting? The fact that someone MAY copy a DVD with DeCSS? We better stop selling guns because someone MAY kill someone.

In fact, we better stop selling pipes, too, because someone MAY build a pipe bomb. And someone MAY start a fire with the gasoline that we should stop selling. And let's not even go near baseball bats, because someone MAY use them to break windows while rioting in some city somewhere.

It's not about DeCSS in particular. It's about the fact that something like DeCSS is trying to be legislated into oblivion. And THAT goes against everything Free Speech astands for.

But what?

[TBone]

So you argue that legislating for the status quo, while infringing on your preferences, my preferences, and countless other peoples' preferences, is OK?

Let me post a little quote for you:

Congress shall make no law...abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Perhaps you recognize this. You should - it's the majority of the First Amendment of the Constitution of the United States. It doesn't say that the laws passed shall benefit the status quo, it says that "Congress shall make no law...abridging the freedom...of the people". All people. Not people who are too lazy to uninstall Windows if they don't like it, or aren't technologically apt enough to instlal Linux and use it exclusively and want to play DVD's on it. It says ALL people. That's you and me too.

The status quo doesn't care - they will go wherever things go, and they may or may not like it, but as tends to be the case here in the US, we will sit on our asses and do nothing while the world, technology, and business pass us buy and give us whatever they want. No one was unhappy with VHS, but they liked DVD when it became available for a reasonable price. DVD was pushed by the industry, and accepted by the consumer, not the other way around.

The MPAA is trying to legislate my fair use of a product I bought by blasting DeCSS throught he courts. Unlike CD Audio, or VHS, or magnetic tape, where the interface to the data is publicly available, the interface to DVD has been locked up by the DVD Consortium. This fact alone is a violation of copyright, which prevents copyright holders from using copyright to dictate the tools you are allowed to use with a something.

This is a stupid case. All of the precedents have already been upheld: linking, code as speech, fair use, copyright law. The lawyers for 2600 need to present all of these in plain english that a 10 year old can understand and get the hell out of court.

Re:Here's my favorite part....

[CMiYC]

EXACTLY. I don't think the judges bought into that assumption though. They seemed to be confused as to what the problem with the 1st copy is....

---

Here's my favorite part....

[CMiYC]

Judge: With audio digital tapes, can?t the user make one copy without infringing?

Alter: That?s exactly right.

Judge: And without it violating that Act?

Alter: That?s right.

Judge: Perfectly true copy.

Alter: That?s right.

Judge: As far as most human ears are concerned, indistinguishable from the original?

Alter: Correct.

Judge: Right?

Alter: Yes.

Judge: Can they post that on the Internet?

Alter: Well, under the Home Recording Act, there?s no ? you run into at that point in time a potential copyright violation.

Judge: If you post the copy?

Alter: I would suggest that that might violate the Copyright Act.

Judge: But you get to make the first copy?

Alter: That?s correct.

Judge: So why couldn?t they do that with DVDs?

Alter: Well, my point is is that it would not give the content providers any protection, because if someone made one copy --

Judge: Wouldn?t it give them the same protection the Audio Act gave the music providers?

Alter: No. Because once ? let me try to explain. Once that copy is on the Internet, if it is naked --

Judge: Well, maybe you can enjoin them from putting it on the Internet. That?s an idea.


---

Re:Here's my favorite part....

[Bongo]

No. Because... let me try to explain.

Try not. Do or do not, there is no try. -- Yoda

Yeah, let him try to explain how "No" means "Yes". Just how did he "explain" that one...?

Re:Here's my favorite part....

[Rinikusu]

You know, copyright laws or not, I can *still* download pretty much damned near everything I want via Bearster (sad but true), DeCSS or not, and I didn't need a federal court case to tell me that it was illegal. Considering that most of these come in .zip packages, maybe they could hold WinZIP liable for providing a "theft" device, as well.

Or, maybe this judge will tell them to get their heads out of their asses.

Here's to hoping for the latter.

Re:Here's my favorite part....

[GoofyBoy]

"Judge: Well, maybe you can enjoin them from putting it on the Internet. That?s an idea. "

This is what I'm afraid of what is going to happen. More regulations/restrictions on data which flows through the Internet.

At some point, the source's computer, the source ISP, the routers, the destination's ISP, the destinations's computer, is going to be wired to check to make sure that the data is "legal" to be transmitted/viewed. Thats the last thing I want.

And they will do it, just like how you can't reproduce an entire novel in a newspaper.

Re:Here's my favorite part....

[bwt]

"Judge: Well, maybe you can enjoin them from putting it on the Internet. That's an idea. "

Ummm. Copyright infringement is ALREADY illegal. The defense needs to emphasize that judicial nixation on 1201(a)(2) doesn't suddenly legalize copyright infringement. It also doesn't even impact 1201(b)(1) which is aimed at circumvention tools primarily aimed at copyright infringement as opposed to mere access.

Re:Here's my favorite part....

[Nidhogg]

I liked that part too.

But it amazed me that Alter, whenever they were talking about making a copy, kept saying "when it's posted on the Internet".

Pardon? Who said that if you make a single copy that you're going to post it?

Seems to me that that's one hell of an assumption to make. I see what he's trying to do though. If he stipulates that it's fair use to have a backup copy that doesn't get posted then... his argument is screwed.

Re:Here's my favorite part....

[BIGJIMSLATE]

Yeah, but they're also making the assumption that once something is on "THE INTERNET", it is available free of charge, with no effort, as fast as turning on a light.

They seem to make this "INTERNET" that they speak of to be some omnipotent god-like piece of pure power. Funny, all I seem to find is porn.

Re:Heh..pickles?

[Now15]

Only one problem -- Laserdisc video is not digital.

Simon

--

Re:Read EVEN Closer...

[HyPeR_aCtIvE]

Actually, the judge was talking about Digital Audio Tapes ... IE: DAT ...

Re:Is this intentional?

[Dan D.]

DeCSS is just providing me that key to unlock what is rightfully mine. One of those "licensed DVD playback manufacturers" screwed up and let the cat out of the bag. What is so illegal about unlocking what is rightfully mine? This "fair use" is like going to the grocery store to buy a box of cereal and getting it home to find the box locked. Now I need to go back to the grocery store and buy a key to eat my cereal???

One clarification, you do generally need a bowl and a spoon to eat cereal (although punching your fist through the box and grabbing a handful is acceptable), requiring the certified DVD player is like saying "You can only eat this cereal out of this frootloops certified bowl. And if you live in China you must use the Chinese frootloops bowl."

I have a question. If I want to make a movie on a DVD and release it in MP4 withOUT encrypting it. Will anyone be able to watch it? (other than people who know how to use their computer?)

Nathan.

Re:Heh..pickles?

[Augusto]

The only part that had color was the girl in the red dress that gets killed, and the candle in the Jewish religious ceremony/prayer.

Re:Because that is totally irrelevant.

[Augusto]

The fact it can be used to decrypt on Linux/Mac/BeOS etc etc is entirely secondary.

Then why is Ms. Sullivan submitting examples (in a previous paragraph) about fair use practices like a child copying a portion of a movie for a book report.

Being able to watch what you bought in your environmnet would seem to be a good argument in that sense.

Not everything in the world is a platform for MS bashing/Linux evangelism.

Who the heck is bashing or evangelising anything ????

Why does Sullivan fail to mention the Linux use ?

[Augusto]

She still doesn't mention that DeCSS is very useful for people with unsupported platforms.

She missed an excellent chance here ;

Judge 2: What was the purpose that these defendants had in the creation and dissemination of this program?

Sullivan: Multiple purposes, Your Honor. The record is clear that there were multiple purposes. One was to inform the scientific community to make accessible to the scientific community in the way that things in the Internet community are, through open public dissemination over the Internet, the qualities of the studio's use of encryption, and the ease with which it might be decrypted. The other was simply to publish truthful information lawfully obtained. Nobody here broke any laws to obtain DeCSS, a function of the press that's protected under a long line of cases such as Florida Star. The purpose was also to show the world how easy it was to decrypt these movies, and some people in the audience might use decryption for bad purposes, but many don't. And when Congress is trying to stop a harm, it's got to tailor its restrictions much more closely to the harm.

Anybody have any idea why she refuses to mention that this type of technology is useful for people in non Win/Mac platforms ???

Beyond Disappointed...

[MO!]

Please Please Please, stop giving creadance to this fallacy that one can excercise Fair Use rights by obtaining an anolog version!

The Fair Use provision applies to an item purchased - that specific item purchased. It does not in any way, shape, or form require you to purchase another item of lessor quality.

If I were to purchase a DVD formatted movie, then I have rights via the Fair Use provision to extract exerpts for critical review (for example) from that specific DVD I have purchased. At no time am I required to purchase a separate copy in an alternate format.

The sooner this issue can be clearly communicated, and thus understood by the presiding judges, the better!

Re:Beyond Disappointed...

[MadAhab]

You are quite correct. However, the transcripts showed judges, Newman in particular (Newman!), showing contempt for the legal process by arguing their conclusions, not asking for arguments. You could practically hear Newman's synapses burning as he tried to make arguments stand on their heads in favor of the gangste^H^H^H^H^H^H^Hplaintiffs.

The MPAA's arguments sound increasingly like Chico in A Day at the Races, claming that the whole thing makes sense if you buy one more secret decoder book.

Though it hasn't yet surpassed the judge who recently stated that perpetually extending copyright does not equal granting a perpetual copyright (probably the same type of argument he uses to eat the entire cake; I only ate one piece, and then one more, and then one more...).

Boss of nothin. Big deal.
Son, go get daddy's hard plastic eyes.

Re:Beyond Disappointed...

[dachshund]

I have to agree that it looked like the justices were a whole lot easier on the gov't attorney and the MPAA than on the 2600 attorney. If I weren't a lazy sack, I'd go back and find some good examples-- suffice it to say that Sullivan really had to do battle, while the judges almost completed the gov't attorney's arguments for him.

On the other hand, often a judge will be harder on the side that he's leaning towards, in order to thoroughly test an argument he/she is considering using in an opinion.

We can only hope.

Re:Is this intentional?

[ethereal]

The artist doesn't have to give you permission for fair use; fair use is an established part of copyright law that is considered to be a basic right of the purchaser in this case.

Caution: contents may be quarrelsome and meticulous!

Re:michael in charge?

[ethereal]

Hmmm, having run into the karma cap, it seems like this one comment is a good way to bleed off some more. I've lost 7 karma in a day, which has dropped me lower than I've been in a year or so (since before the cap was instituted, if anyone recalls when that was). But the discussion's been interesting.

I disagree with the troll moderation, though - it can hardly be trolling if none of the replies are visible due to having been moderated "below ground", can it?

Caution: contents may be quarrelsome and meticulous!

Re:Is this intentional?

[sammy baby]

Furthermore, the firms that make DVDs do not, for the most part, make DVD players, so the use of the term "tying" is somewhat inappropriate.

I think the argument was that the firms that make DVD players also make VHS recorders: hence, requiring the purchase of a VHS recorder would be "tying".

Mind, I'm not sure how well this holds up from a legal standpoint, but I see where he's coming from.

Re:Free speech?

[Sloppy]

Free speech is in the constitution to permit people to criticise leaders.

Well, I truly believe the founders had religeon in mind too.

And thanks to Scientology, we can now make a direct link between free speech about religeons and free speech about industrial trade secrets. :-)

---

Re:How about beating them with their own stick?

[Sloppy]

The court probably counts as Law Enforcement. If you've read the DMCA, you'll see that makes 1201 not apply to them.

---

Sullivan doesn't read Slashdot?

[Sloppy]

Judge: I don't think it even does that. At best - at worst, it eliminates the fair uses in the most technologically preferable form, namely the digital rendering of the material. That's the worst it does. It doesn't say anything about making fair use with less technically excellent methods, right?

Sullivan should have read the Slashdot discussion about this. We did come up with several good examples, where the "technically excellent" means of making use of fair use is the only way. (My favorite example being a review that encourages people to buy a new copy of a DVD movie because it looks better than their old VHS copy, and provides a clip to do that. You can't provide a clip that shows off the quality of DVD if you have to get the clip via analog resampling!) Did Sullivan argue this point and explain to the judges? Nope, just let it slide. Dammit!

---

Re:Is this intentional?

[Sloppy]

If that were true, then what is DVDCCA's justification for all the weird terms in their license (e.g. no firewire output allowed, Macrovision must be implemented, etc)? There is no conceivable explanation for DVDCCA's behavior unless they are somehow related to the content companies.

---

Re:Is this intentional?

[Sloppy]

In other words, there is no license!

Well, then you can't watch it.

Actually, that really is the case. DMCA says you may not unscramble the movie "without authorization". Even if you watch a movie with a licensed Sony DVD player, I bet you can't prove that the copyright owner of the movie ever gave you authorization to watch it. Sony got a license from DVDCCA. You didn't get a license from MPAA.

Go ahead, look for the proof, you'll never find it. If you go by the evidence and the written law, every person who has ever watched a DVD, is a DMCA violator.

Of course (I'm being optimistic here) that is not MPAA's or the DMCA authors' intent.

If the defense were ever to bring this point up (and they haven't, I've looked for it), MPAA would have to explain how the implicit authorization actually takes place. It doesn't happen when you buy a licensed DVD player, because MPAA thinks that DeCSS is bad even when used by people who own licensed players. So it all comes down to the authorization being a weird conditional thing that the MPAA grants and revokes minute by minute, depending on a third-party agreement between the manufacturer of the device (or software) that is reading the DVD, an DVDCCA. Such a bizarre contract where one party doesn't even know the terms, is so ridiculous that there's no way it could ever be enforcible. Thus, no one (who doesn't have a written letter from a movie studio) ever has permission to watch any DVD, ever. DMCA does not work.

Remember - you own the medium, but the artist (or whomever he sold out to) owns the work. He can license it to you in any way that he wishes, with any restrictions, in a binding contract, without a signature. The contract is valid until it is struck down in court for violating the doctrine of first sale, fair use, or whatever.

Oh come one. Any restrictions, even when those restrictions are never revealed to the consumer? When the existence of restrictions is never even disclosed? Look at a DVD some time, and see if you have any way to answer this question: Do you have permission from the copyright owner to watch that DVD? If so, under what conditions? You don't have a chance.

---

Now In Color!

[Sloppy]

You paid your $25 for "Schindler's List," you took it home, you're color blind. You want to use DeCSS to download it and change the pickles from blue to green so you can see it better. Cant' do that, can't use DeCSS to do that.

I really wish he hadn't picked a black 'n' white movie for that example.

---

Re:Now In Color!

[BIGJIMSLATE]

You forgot about the girl in the red coat, and the (apparently) blue pickle that they want changed to green (I guess I was taking a piss during that scene).

Re:Is this intentional?

[Royster]

Thank you, Mr. Troll. But in this case, you're way too late. Try a story nearer the top of the front page.

Re:Why does Sullivan fail to mention the Linux use

[Royster]

In my opinion, the MPAA is used to exhibiting their works under terms where they control all aspects of the experience. They publicly exhibit their works in theatres where they can legally impose more restrictions than, say someone who publishes a book. They can forbid admittance to people with videocameras, for example even though some might only tape a portion as a fair use.

They want the economic advantages of publishing (low cost to produce and distribute works) without giving up any of the rights that publishers do under the First Sale doctrine. They want to control access to works, not sell copies.

The Questions

[Royster]

The questions are evidence that the judges are taking the First Amendment challenge very seriously. It's even possible that they will schedule additional oral arguments after these longer briefs are due. I reproduce the questions and my answers.

1. Are the anti-trafficking provisions of the Digital Millennium Copyright Act content-neutral? See 111 F. Supp. 2d 294, 328-29 (S.D.N.Y. 2000).

No. It bans speech specifically because of its content.

2. Does DeCSS have both speech and non-speech elements?

I suppose it does.

3. Does the dissemination of DeCSS have both speech and non-speech elements?

Probably not.

4. Does the use of DeCSS to decrypt an encrypted DVD have both speech and non-speech elements?

Using DeCSS in order to exercise one's Fair Use rights is a speech-like element. Fair Use exists as a judicial compromise between copyright and the First Amendment.

5. Does the existence of non-speech elements, along with speech elements, in an activity sought to be regulated alone justify intermediate level scrutiny?

No.

6. If DeCSS or its dissemination or its use to decrypt has both speech and non-speech elements and is not subject to intermediate level scrutiny simply because of the non-speech elements, is intermediate level scrutiny appropriate because of the close causal link between dissemination of DeCSS and its improper use? See 111 F. Supp. 2d at 331-32.

No. The presence of significant non-infringing uses trumps the possibility of improper use as per the Betamax decision.

7. If the District Court is correct that the dissemination of DeCSS "carries very substantial risk of imminent harm," 111 F. Supp. 2d at 332, does that risk alone justify the injunction? In other words, does that risk satisfy the requirements for regulating speech under Brandenburg v. Ohio, 395 U.S. 444 (1969), thereby rendering unnecessary an inquiry as to whether non-speech elements of DeCSS or its dissemination or its use (if such exists) may be regulated under United States v. O'Brien, 391 U.S. 367 (1968)?

?

8. Are the three criteria identified at 111 F. Supp. 2d 333 the correct criteria for determining the validity, under intermediate level scrutiny, of the use of DeCSS that has been enjoined?

We've gone way past my limited legal knowledge by this point. I'll have to leave the remainder to other legal scholars.

9. If not, what modification or supplementation would be required to conform to First Amendment requirements?

10. Are the three criteria identified at 111 F. Supp. 2d 341 and the "clear and convincing evidence" standard the correct criteria and the correct standard of proof for testing the validity of the injunction's prohibition of posting on the defendant's website and of linking?

11. If not, what modification or supplementation would be required to conform to First Amendment requirements?

Re:Also in audio...

[Royster]

It's difficult to predict how justices will rule from their questions. Sometimes they ask tough questions of the side that they are leaning towards just so that the holes they percieve in the argument can be patched up.

Simms for the MPAA and the DOJ representative got very challanging questions as well and I don't think they came out with any good answers to the judge's questions.

Re:Very interesting - you have to wonder

[Royster]

Some very unsavory characters ahev won First Amendment cases. I think appeals court judges take the First Amendment *very* seriously -- even more so than district judges. 2600's status as a "hacker" magazine shouldn't count against them at the appeals court level any more than Larry Flynt's status as a foul mouthed, publisher did.

Re:Is this intentional?

[Royster]

Speech is not a magic incantation. The Supreme Court has ruled that speech may be regulated. Laws and regulations that restrict speech are subject to either strict or intermediate scrutiny depending on whether the regulation is content-neutral or not.

The O'Brien case considered the act of burning a draft card. The act was both conduct and speech, since he burned the card to protest the Vietnam War. The SC ruled that the government could ban burning the draft card because the law was narrowly tailored and was the least restrictive means available to further an important government interest.

So, the question is not "Is DeCSS speech?" There's no question on that issue. The question is "Should DeCSS be subject to a strict or an intermediate scrutiny" and, if it is strict scrutiny, is it the least restrictive means to further an important government interest?

Sullivan was trying to bring out an *important* point in a strict scrutiny argument. If the speech is predominantly "functional speech", it may be held to a stricter regulation. She was looking to play up the expressive aspects of DeCSS -- elements that weigh against it being purely functional.

Re:Why does Sullivan fail to mention the Linux use

[Royster]

She still doesn't mention that DeCSS is very useful for people with unsupported platforms.

That's all in the briefs. Her job is not to repeat everything that the briefs have to say about the case. Her job is to fill in the holes that the questioners think they see. So when she says "multiple purposes" and refers to the record, all the stuff about that in the trial transcript and briefs are being referenced. She saves prescious time by referencing the record.

I think we should consider what it means that the justices gave her a lot of extra time to answer questions about her brief. If they were ready to dismiss it out of hand, she wouldn't have had an extra minute. The fact that they wanted her to answer questions over her time limit tells me that the judges are very interested in her answers and in the case she's making.

Re:Why does Sullivan fail to mention the Linux use

[mlc]

I think we should consider what it means that the justices gave her a lot of extra time to answer questions about her brief.

Certainly! It's important to note that the judges gave both sides a lot of extra time. I don't think we can interpret this to show how they'll decide, but I think it does show that the judges are willing to take this case seriously, and not just one of the string of sometimes-silly cases that they take every week. (The first case that morning was some woman who appeared to already have the thing she was suing for.)
--
// mlc, user 16290

Transcript Quality (Was: Re:Heh..pickles?)

[mlc]

There is no court reporter official transcript for the 2nd Circuit Court of Appeals. (Really! Try calling them up and trying to get a transcript. You can't do it. You can only get an audio recording. As it says on the page, this is an unofficial transcript made by an EFF volunteer, OCR'd in by cryptome. So, there was a mistake in the volunteer transcription or the OCR. People are providing a free service, give them a little leeway!
--
// mlc, user 16290

Re:Is this intentional?

[QuietRiot]

Sullivan manages to undermine her argument by suggesting that someone can always use a video camera to tape a copy of a DVD being played on approved equipment...

I think the point is that the fair use is lost because you must use a player that is restricted by "Regions," etc. and cannot utilize the material that you purchased without first decrypting the content.

Why should a person have to go out and purchase a regluated playback device to view the content they bought in the first place? It's my DVD and I want to watch the movie on it, but I have to PAY a "licensed DVD playback manufacturer" to watch the ENCRYPTED video????????? That's absurd!

DeCSS is just providing me that key to unlock what is rightfully mine. One of those "licensed DVD playback manufacturers" screwed up and let the cat out of the bag. What is so illegal about unlocking what is rightfully mine? This "fair use" is like going to the grocery store to buy a box of cereal and getting it home to find the box locked. Now I need to go back to the grocery store and buy a key to eat my cereal???

Anyway, the 2600 lawyer started heading down the wrong road talking about how a person can video record the playback from a DVD player. The point is that we shouldn't have to go out to BUY a player that has some secret code in it (yes. you ARE paying for the secret codes....) just to utilize the material we purchased in the DVD format. The material is MINE. It is only fair to me to have access to it without having to spend more money. While true that if I buy a pre-recorded VHS casette, I need a VHS playback device to view the material. But I DON'T need to buy it from someone who spent a lot of money to license a secret code that allows me to play it. I can build a VHS VCR if I want and play back my pre-recorded video. While difficult, it's possible and legally kosher. The DVD is a whole different story because what's mine isn't mine until I pay someone else to use it........

Re:The studios are being unfair, but ...

[Daffy Duck]

The studios argue that they would never have distributed movies in digital format without the DMCA.

This is the crux of MPAA's leverage - they're essentially holding a gun to their own product's head and shouting "everyone back off or we'll kill the movie industry!".

It's utter bullshit. If lack of access controls is really a reason not to release works, why do the record companies keep releasing unencrypted CDs in ever-growing numbers?

The MPAA's only business is producing and distributing movies. The DMCA is a nice little present they bought for themselves from Congress, but you can rest assured that without it they'll still find a way to stay in business with obscene margins.

Re:Heh..pickles?

[MindStalker]

I may just be a plain analog signal that was put onto the disk instead of a compressed signal, but you can be sure it had to be turned into 1's and 0's before actually being burned to the disk. Or is this some magic optical disk burned by the fairy princess.

Re:Heh..pickles?

[MindStalker]

So your saying it had different depths of pits?

Re:11 words for the prosecution

[scooby-doo]

I only said it was funny, not realistic.

Read DeCSS code into court transcript

[scooby-doo]

I was thinking with all these court transcripts flying around it's too bad 2600 couldn't get DeCSS code read out loud so that it would be typed into the transcripts and available to everyone. It would be funny to use the judicial process to circumvent itself. Just a fun thought.

Re:Read DeCSS code into court transcript

[Mop]

For this purpose, this document is a decss in plain english, illustrated with C code...

Re:Read DeCSS code into court transcript

[kimihia]

Living under a rock?

It was included in court documents a long time ago, but someone realised and asked to have those documents hidden away.

And how are you going to read it out anyway?

Judge: Am I allowed to make a copy?

Bob: main open parenthesis ...

Re:Read DeCSS code into court transcript

[dynoman7]

I was thinking with all these court transcripts flying around it's too bad 2600 couldn't get DeCSS code read out loud so that it would be typed into the transcripts and available to everyone. It would be funny to use the judicial process to circumvent itself. Just a fun thought.

I know you intended the above as a fun thought, but I feel the need to point out that you could have a really good p0iNT: A) wouldn't the code in question (website, files, printouts, other examples) be submitted as evidence? and B) would we not have access to those docs via FoIA?

Comments please...

smells like racketeering

[blach]

You know when you talk about it that way it sounds like the MPAA/DVD-CCA/whoever need to be brought up on racketeering charges. Its like they sell you a product but then you have to pay them for a license to use your product.

Yeah we can protect you, for a fee.

Re:Heh..pickles?

[LarsG]

No. A laserdisc is analog just like an LP is.

Re:Thoughts on DeCSS injunction

[Flower]

That would not save you. To quote from Kaplan's judgement.

1.
The Remaining Defendants, their officers, agents, servants, employees
and attorneys and all persons in active concert or participation with
them who receive actual notice of this order by personal service or
otherwise be and they hereby are permanently enjoined and restrained
from:

(a) posting on any Internet web site, or in any other way
manufacturing, importing or offering to the public, providing, or
otherwise trafficking in DeCSS, and

(b) posting on any Internet web site, or in any other way
manufacturing, importing or offering to the public, providing, or
otherwise trafficking in any technology, product, service, device,
component, or part thereof, that:

(i)
is primarily designed or produced for the purpose of circumventing, or
circumventing the protection afforded by, CSS, or any other
technological measure adopted by plaintiffs that effectively controls
access to plaintiffs' copyrighted works or effectively protects the
plaintiffs' rights to control whether an end user can reproduce,
manufacture, adapt, publicly perform and/or distribute unauthorized
copies of their copyrighted works or portions thereof;

2600 could not link to or publish the code for any CSS decoder if I am reading this correctly. And it would not surprise me if the MPAA simply changed the cease and desist boilerplate they currently use to get an ISP to remove the hypothetical DeCSS varient.

Re:Because that is totally irrelevant.

[Bj�rn Stenberg]

The author controls the disposition of his work. If he wants it released only on Windows, tough. He always have the right not to buy it. You never have the right to tell him how to apply his copyright.

Absolute bullshit. Copyright is not a license to control customers' lives. If I buy a book from you, it is legally mine. I may read it, burn it, bury it or feed it to the dogs. The only thing I'm not allowed is to sell copies of it. Hence the name copyright.

Re:Heh..pickles?

[jmauro]

But the gray was sort of blueish gray. If you're color blind, the black and white picture would be all muddied, because you couldn't see all the shades of gray.

Re:Interesting

[Kwantus]

i've pretty much only started reading, but if the arguments *did* get through, good, 'cause the judge wasn't an easy sell (or even a clear speaker).

(I thought Schindler's List was an unfortunate example, since it's nearly all B&W and hasn't any pickles that I recall... specially blue ones... =)

The studios are being unfair, but ...

[mcfiddish]

The studios argue that they would never have distributed movies in digital format without the DMCA. The truth is, most people *like* DVD movies, with the special features and sound and sharpness. And they don't care if their fair use rights are being denied because most people are satisfied with the uses they *do* get from their DVD.

So is the DMCA a good thing? It is an unfair law, but for most people, they get a nice movie format thanks to it, and the only real downside is they have to listen to their geek friends denounce the DMCA and the MPAA whenever the word "DVD" is mentioned.

And to bring Microsoft into this ...

You know how people often defend Microsoft's model of forcing OEM's to preload Windows by saying "well, it ends up being cheaper for most people"? In other words, having Windows preloaded on your computer for $10 is preferable for the vast majority of people rather than buying a computer and paying $15 for Windows. And Microsoft would never have done this unless the OEM's agreed to put Windows on *every* computer they sell.

But even though it's unfair, it's beneficial for the vast majority of people.

All that being said, I don't use windows, and I don't buy DVD movies. I've written my representatives in Congress about the DMCA. I'm very happy that we have some distinguished legal minds arguing our side. But I suspect most people are happy with the way things are and would rather have the DMCA than not.

Re:The studios are being unfair, but ...

[mamba-mamba]

Your observations are very true, and that makes the situation far more dangerous. If the DMCA were being used now to keep people from the cheap entertainment to which they have grown accustomed, there would be a truly huge public outcry and the DMCA would go down in flames.

But I feel pretty sure that what the big entertainment companies ultimately want is a pay per view licesning arrangement on all content. That is why they are fighting so hard to stop DeCSS. They want there to be no uncertainty surrounding the question of whether they have the absolute right to dictate exactly how all content is viewed. That was probably their goal all along with DMCA. And if they succeed, you can expect software licensing to follow suit. And probably textual material (e-books) as well. There are already examples of such now.

Ultimately, the digital millenium really does present a lot of questions for speach and copyright. For example, it doesn't make sense to sell someone a book or phonograph recording and then say that they can't read it or listen to it pretty much whenever they want (I mean, I know you probably can't legally broadcast the recording without compensating the artist or song author, but I am not thinking of that here). But does it make sense to do it with a DVD? Well, it may be possible to construct a set of technological and legal barriers to achieve this, and that is what this battle is all about. (In my opinion.)

When you get right down to it, it may be time to stop trying to draw analogies with content distribution mechanisms of the past and simply decide how we want the future to be. I, for one, don't want to cast my vote for a world where all content, including textual material, is served up exclusively on a pay per view basis. In fact, I believe this vision represents a dystopia wherein Richard Stallman's worst fears are realized.

Re:Good MPAA analogies- at least when unquestioned

[MadAhab]

I'm not buying the defence's weakness here, nor the correctness of the plaintiffs' analogies... First sale is first sale, period. Expiration of copyright means that the copyright is expired, not whatever horseshit straw man argument you want to throw out. No, it doesn't give you the right to go into someone's living room to look at the painting. It does permit you to paint a copy of it from any copy you can find - a "perfect" copy or a photo in a book - and show it to whomever you damn please. And you can then take your legal copy and mass produce it FOREVER. The DMCA pretends to forget this fact with the complete fiction that if I buy a copyrighted work, wait 100 years until Congress quits perverting copyright law and the copyright actually expires, and then I watch it, I am not entering a theater. Period. This argument pretends that a DVD player is not a device, but a theater, which is absurd. I no longer pay money for the DVD player! I am only loaning it! So 50 years from now, I'll go back to Walmart with my DVD player in hand and demand my money back.

Boss of nothin. Big deal.
Son, go get daddy's hard plastic eyes.

The judge is already educated.

[Malcontent]

You may have been following the stories about right wing organizations "educating" judges by flying them to resorts and wining and dining them. These judges have been "educated" by the corporations already. You don't have enough money to "educate" judges and let's face it they are not going to pay their own airfares to your local coffee shop to listen to you talk not when they can be at pebble beach listening to the CATO institute.

Re:Heh..pickles?

[curril]

It is on Laserdisk, which, interestingly enough, is not encrypted and can be digitally copied.

What about VCD and CD-I?

[cr0sh]

The studios argue that they would never have distributed movies in digital format without the DMCA.

I suppose the studios have never licensed the production, of oh, say - VCDs and CD-I disks - ever?

Both formats have existed for a long, long time prior to the DMCA (and the VCD/MPEG-1 format is still popular and produced in Asia, though I am not sure if it is still licensed legally, or what)...

Worldcom - Generation Duh!

Re:Is this intentional?

[MrPeach]

The O'Brien case was, in the end, about destruction of government property - the draft card - and not about free speach. Anyone who peddles a different interpretation of it hasn't read the case law very well.

Re:whos kidding who??

[aufait]

A) DeCSS is only used for accessing to video once it is changed is it still the same movie. Is the new video protected by the same copyright?

yes

B) The copy can be made by the os so does this make OS's illegal under DMCA?

This has already been addressed by the courts. The case dealt with reverse engineering. The Plaintiff argued that because the defendent had to make unauthorized copies in RAM in order to run and reverse engineer the progrm, the defendant violated copyright law. The court did not buy the arguement. They ruled that incidental copies made while making fair use of a program do not infringe on copyright.

C) A gun only has malicious intentions and they are legal. What sort world is this when DeCSS is considered more dangerous than a gun?

Bad analogy because guns are specifically protected by the Second Amendment.

Re:Is this intentional?

[aufait]

you did not sign or agree to any contract when you purchased the software.

I may agree with you; but, not all the courts do. This arguement has been tried in court; and, it has failed. The judge ruled that because the purchaser can read the EULA at home and return it for a refund (at least in theory), it is a binding contract.

Plus, UCITA removes any legal ambiguity and makes click-wrap licenses binding contracts.

Re:Is this intentional?

[aufait]

> In other words, there is no license!

Well, then you can't watch it.

Yes, I can. I own the copy and can do with it whatever is allowed under copyright law.

If I buy a video, it is most likely licensed for home viewing only.

DVDs do not have a license. You purchase the copy and the only restriction on what you do with that copy come from copyright law.

You are assuming that DVDs have something similar to the EULAs in software. This is not the case.

Pick up any software that has an EULA and you will see something on the side that says: "You must agree to the enclosed license before you can use the software." There is no similar verbiage on a DVD.

Can I play this in a public place

This is covered under copyright law. I can not charge admission for my dramatic reading of a novel I have purchased. This is considered a performance and not allowed without express permission of the author. The same is true with a DVD. Making money off a public showing of the movie is prohibited by copyright law. It has nothing to do with licenses.

Did I have to sign something?

I think the legal phrasing is "give consent". And, yes you must if it is to be considered a contract.

Software gets around this with the click-wrap license. If you click on "I agree", you have given consent.

A copyright license does not have to be signed by the purchaser to be valid. And DVD's are most definitely not sold with the same restrictions that come with the purchase of a book - the license is completely different.

The act of purchasing a DVD does not imply consent to a license you have not seen. When you buy a DVD, is there a piece of paper that has the words "Licensing Agreement"?

Remember - you own the medium, but the artist (or whomever he sold out to) owns the work.

The artist owns the work; but, I own the copy I have purchased.

He can license it to you in any way that he wishes, with any restrictions, in a binding contract, without a signature.

He can license it only if he gets my consent. There is no mechenism with DVDs for getting my consent. If they came with "click-wrap" licenses, I would agree with you. But, they do not. Buying a DVD does not have any such mechenism.

Re:Is this intentional?

[aufait]

your permission (license) to use it

DVDs are not sold with click-wrap licenses. Both parties must give consent in order for a contract to be formed. Since there are not terms explicitly given to the consumer, he can not give consent to those terms. In other words, there is no license!

DVDs are sold with the same copyright restrictions that come with the purchase of a book. The First Sale concept prevents the copyright holder from dictating how I may use the copy I purchased. If I want to view it on a Linux box, I legally can.

Re:Very interesting - you have to wonder

[civilizedINTENSITY]

Does it matter that Larry Flynt was an *established* "foul mouthed, publisher"? It at least helped him pay attorney fees...

Re: Corruption

[Inigima]

The issue is not the quality of the plaintiff's arguments; rather, it is the priorities of the court. Plaintiff's arguments make perfect sense -- IF you place a higher priority on corporate intellectual property than on private citizens' rights. The reason it seems that their arguments are faulty is that, like most of the /. crew, you and I place a higher priority on the individual rights.

The plaintiff's arguments center around the idea that, while it may well cost us some rights -- at least, rights that you and I choose to interpret in a relatively broad way fashion, relative to the MPAA -- preservation of those rights would require potential damage to the MPAA's cash intake. And make no mistake -- the damage is potential only. Dean Sullivan specifically noted that there are NO infringing uses of DeCSS on the record. (At the same time, bear in mind that, as the plaintiff argued, that may be because we have no way of tracking such infringment).

Now, the way I see things is that individual rights have been watered down plenty by previous cases and really don't need any more of such treatment. I place a higher priority on those rights than on the MPAA's (faulty) business model, especially since they're in no real danger of dying. To be more precise, than on the business models of the studios which comprise the MPAA.

The real question we should be asking here is not who made the more compelling arguments. Instead, the question to ask is where the judges will place their priorities.

inigima

Tried to argue for Linux

[Joe_NoOne]

She did try to argue for being able to view DVD's on other platforms, but was cut off. How ever, the judges have read this and have seen arguements to this point from Amicus briefs :

Judge: Now that argument ? so this is the argument that inhibits fair use.

Sullivan: It inhibits lawful users from making fair uses and not infringing uses. It stops people from playing the DVD on a different digital --

Judge: Alright, let?s look at that. Some of the people ? I guess your brief, along with the amici, argue it eliminates fair use. Now, is that what?s happening here?

Sullivan: Your Honor, under the statute as interpreted by the District Court, there can be no access to digitally encrypted DVDs even if you want to make fair use of them. He has prohibited fair users from using the DeCSS along with all the --

Judge: From using the movie in its digital form.

Sullivan: Correct, Your Honor.

Judge: Does that stop fair use?

Sullivan: It stops fair use in digital form, Your Honor

Heh heh, I think the prosecution puts it best.

[Lux]

The prosecution puts it best:

"they don't just make a copy, they make a perfect copy. And then they are able to take that perfect copy and put it on the Internet and distribute it worldwide. This is something that Congress can protect against. "

Yup... Congress sure can protect against that copy being put on the internet. I think someone should write some laws against that. :)

Why do they keep missing the point?

[jcr]

I didn't see the defense bring up the fact that DeCSS has *no* effect on anyone's ability to copy a DVD.

With or without DeCSS, I can make a verbatim, bit-for-bit copy of a DVD, and play it on any licensed DVD player. With DeCSS, I can play it not only on any licensed DVD player, but also on any unlicensed playback program or device.

So, the real question here is: Does the MPAA have a right to restrict what I can do with content that I've purchased?

What business is it of theirs, if I play it on a licensed DVD player, on an unlicensed DVD playback program, or if I just toss it under a microscope and admire the pretty diffraction patterns?

-jcr

Re:Why do they keep missing the point?

[Keeper]

They did bring it up. However they didn't spend much time on it.

My responses

[underwhelm]

>1. Are the anti-trafficking provisions of the Digital Millennium
>Copyright Act content-neutral? See 111 F. Supp. 2d 294, 328-29
>(S.D.N.Y. 2000).

Quite the contrary, as DeCSS is a particular program and the message it contains would be entirely prohibited from publication by the DMCA. I was just rereading the lower court's decision, and he describes a content-neutral restriction as "not motivated by a desire to limit the message," such as place and time restrictions.

>2. Does DeCSS have both speech and non-speech elements?

While rereading the decision, I found the fulcrum upon which the non-speech argument turned. As it has been stated here many times, computer programs don't run themselves. The honorable judge states "DeCSS, like any other computer program, is a series of instructions that causes a computer to perform a particular sequence of tasks ..."

That's the false premise, an error in fact, that might lead the appelate panel to think DeCSS has non-speech elements. Computer programs don't cause anything to happen. People do. I could understand a similar argument if it were made in the case where I was being tried for circumvention *and I claimed my act of using DeCSS* was protected speech, but DeCSS alone does not do anything.

Kaplan's argument is like saying "this Audi, like any other car, is a mass of metal and glass that causes a driver to collide with people at high speeds." It's the premise and the conclusion all-in-one. Convenient for the studios, but also critically false.

I'm also intruiged by the argument that *because it can be copyrighted* it is pure speech. Does Gone With the Wind have non-speech elements because I can use it to prop open a door? Does my Pearl Jam CD have non-speech elements because I can jimmy open a lock with it? Can someone provide me an example of a copyrighted work that has non-speech elements? Just because you can use it for something besides passively having it operate on your mind?

>3. Does the dissemination of DeCSS have both speech and non-speech
>elements?

This ties directly to the argument that publishing is not a non-speech element. Dissemination = publishing = speech, and sophistry should not be able to convince the judges that it is just another action that can be enjoined without bound. Dissemination of DeCSS on CD Rom in the middle of a trial could be enjoined, but that is a time and place restriction that allows me to distribute the message in another manner.

>4. Does the use of DeCSS to decrypt an encrypted DVD have both
>speech and non-speech elements?

Ah ha! See above argument about my defense to circumvention charges that use of DeCSS is protected speech. It's a weak defense, but it may be a defense nonetheless.

>5. Does the existence of non-speech elements, along with speech
>elements, in an activity sought to be regulated alone justify
>intermediate level scrutiny?

It seems to my non-lawyer eyes that they are trying to get us to assert that it is the presence of speech that justifies strict scrutiny, and deny the inverse--that non-speech elements reduce the level of scrutiny. The speech must be protected at the cost of permitting undesireable non-speech, if the only alernative available is to ban the speech.

>6. If DeCSS or its dissemination or its use to decrypt has both
>speech and non-speech elements and is not subject to intermediate
>level scrutiny simply because of the non-speech elements, is
>intermediate level scrutiny appropriate because of the close causal
>link between dissemination of DeCSS and its improper use? See 111 F.
>Supp. 2d at 331-32.

Is the premise, that there is a close causal link, supported by the record? I didn't see that. In fact, the record illustrates no link at all between dissemination and use. Furthermore, improper use is undefined, and it is the government's responsiblity to protect the ability of citizens to make proper use of DeCSS, not prevent its improper use.

Jack Valenti already did it

[underwhelm]

In a manner of speaking. Listen.

Re:Forrest, Trees. Drain Swamp, Alligators.

[underwhelm]

The argument should have been, "Look, by saying that we cannot link to something, that is like telling the New York Times that they cannot say that you can go to Amersdam to smoke pot. Do we limit that. No."

They did say that. Read the briefs.

Antitrust

[underwhelm]

Both good points. Now consider that:

1. Copyright is a limited monpoly--so strengthening that monopoly (eliminating fair use) or distorting the market for another product with that monopoly (controlling the licensing for DVD players) would seem to violate anti trust laws.

2. The DVDCCA, which purports to license DVD players is a front for and created by the studios. Only the studios have the authority to permit decryption of their works under the DMCA, so either the DVDCCA is the agent of the member studios, or the MPAA should be suing them for violating the DMCA. Since the latter isn't the case, the former can be safely assumed.

The connection between the market for DVD players and DVD media is ofuscated, but by observing the actions of the players, their relationship is clear... and reeks of an illegal trust.

Re:Antitrust

[dfalgoust]

1. Copyright is a limited monpoly--so strengthening that monopoly (eliminating fair use) or distorting the market for another product with that monopoly (controlling the licensing for DVD players) would seem to violate anti trust laws.

Well, no. Seeking to change the law regarding fair use, either through litigating to change the current law's interpretation or through lobbying for legislative change, is not an antitrust violation -- those are just methods of changing the law, they aren't business practices that fall under the ambit of the antitrust laws.

As to the tying question, tying is only illegal if it is used by a monopolist in one market to gain monopoly power in another unrelated market. The studios are not in the business of making DVD players, and are not entering into that business. The licensing scheme does not "bootstrap" them into a second market. Ergo, no antitrust problem.

2. The DVDCCA, which purports to license DVD players is a front for and created by the studios. Only the studios have the authority to permit decryption of their works under the DMCA, so either the DVDCCA is the agent of the member studios, or the MPAA should be suing them for violating the DMCA. Since the latter isn't the case, the former can be safely assumed.

No one really questions that the DVDCCA is an arm of the studios.

The connection between the market for DVD players and DVD media is ofuscated, but by observing the actions of the players, their relationship is clear... and reeks of an illegal trust.

Except it isn't. As I've shown above, it isn't tying in the antitrust sense. And it isn't collusion between parties trying to share monopoly power, either (if anything, the licensing scheme hurts DVD player manufacturers.)

There are good arguments in favor of 2600 in this case, but they aren't related to the antitrust laws.

No idea, but...

[Gorimek]

Lawyers don't just get up in the morning of the trial and start to talk from the top of their heads. We can be sure they considered all the possible arguments, and for some reason made the decision that this was not a good line to pursue.

We'll find out in their slashdot interview after the case, I guess.

better wastes of tax dollars

[joq]

For anyone who hasn't followed this case, its all about 2600 hyperlinking to sites that post DVD cracking code when you look at things from a "whats it all about" basis.

Sure the underlying motives are free speech, and the rights for techie/hackers which is good and the outcome is either going to make or break "freedom of speech" based arenas in the tech world. Think about it entirely... Why shouldn't you have the right to post a link to information others want to read for whatever purposes? Just because some corporate bigwigs get scared your going to break their technology? Give me a break tax dollars should have been wasted on more important matters than 2600 posting a hyperlink on their page.

My two cents of it all since I'm personally tired of hearing the rants and ramblings of "they should" "they shouldn't" Next time I'm voting for Elmo for president so he can place real muppets in office (not pseudo fakesters trying to hide their `muppetcy`) maybe they'll allow people to express themselves in unbiased fashions, without getting dragged into court because they hurt someone's corporate ego's.

Linux.com spoof

Re:better wastes of tax dollars

[waynem77]

It seems that you have fallen for the MPAA's line. DeCSS is DVD PLAYING code, not DVD CRACKING code.

It's not?

My understanding is that DeCSS is used to decrypt DVD's, in other words, to "crack" them. The decrypted file may then be played.

I'm certainly not pro-MPAA, but I fail to see the truth in your statement. Or am I just way off on what this code does?

Re:better wastes of tax dollars

[Salsaman]

It seems that you have fallen for the MPAA's line. DeCSS is DVD PLAYING code, not DVD CRACKING code.

Re:better wastes of tax dollars

[Salsaman]

Yes, yes. I know all that. It's just that 'crack' has bad connotations.

If you talk about 'cracking' a DVD, a lot of people will think 'piracy', 'illegal copying', etc.

So it's better to emphasise that DeCSS is a tool to allow *playing* of DVDs on equipment that hasn't been 'blessed' by the DVD CCA.

I hope I've made my point clearer.

Re:better wastes of tax dollars

[Golias]

...tax dollars should have been wasted on more important matters...

That comment, repeated in the subject line, gave me the best laugh I have had all week.

We need yet another moderation category for comments like this:

+1, Malapropism.

Re:better wastes of tax dollars

[Twanfox]

DeCSS (If you haven't ever used the program, which apparently you haven't) is not about Playing the DVD. It's about decrypting the disk so OTHER programs can gain access to the data. Using DeCSS, one can look at the contents of the disk, and copy them to your harddrive (As for the Windows variant, the one I saw, does not have a utility, or didn't, for funneling data through to a player). The data comes in the form of 2 sets of data. 1 are video files, VOB format If I recall right. These files (several for one movie) are broken up on a 1.0gig (approx) barrier, so will be between 3-5 files per movie. THESE FILES ARE VIDEO ONLY. There is no audio data encoded in these VOB files. For that, you must reference another set of files (or one, I never bothered to look). You must then 'sync' the video and audio data together in a player. DeCSS does not do this. The player does. DeCSS just exposes the data for you to view.

While I don't agree with the MPAA's stance in the matter, don't spout misinformed information. Know what you're talking about, please. Thanks.

Re:better wastes of tax dollars

[the_2nd_coming]

Give me a break tax dollars should have been wasted on more important matters than 2600 posting a hyperlink on their page.

yeah and they never would have had to "waist" the governemt's(read MY) money if congress had not waisted even more money on getting the DMCA passed.

since when is their a limit on the price of our freedoms?

Re:Why won't the MPAA just roll over and die?

[sconeu]

What sort of crack have you been smoking? 2600 LOST the original case. This is 2600's appeal, not the MPAA's!

Re:Interesting

[Chris Brewer]

I guess that means that the poor schmoe who's color blind and payed out $25 for a version of a deliberate B&W movie that Ted Turner's got his grubby hands on.

(This post would make more sense if the reference to Turner in the transcript is the same - after all, how else do you explain CNN's Linden Scholes' hair?)
--

Re:Copyright vs. Functionality

[pbryan]

But isn't copyright a limitation on expression? A limit on the protection of the First Amendment? Isn't expression being acknowledged as such if it is being protected by copyright?

I can envision speech possibly being protected by the First Amendment, but not copyright. Copyrights, after all, expire. However, something protected by copyright without free speech guarantees seems more difficult to justify.

Copyright vs. Functionality

[pbryan]

It seems to me, a strong point was missed in this hearing, and in the Amicus briefs:

If software is functional, and not speech, then how can it be protected by copyright? Either it's speech and protected by copyright, or it's functional and it's not.

Either Microsoft Windoze is speech, and is thus protected by copyright from unauthorized copying and distribution, or it's functional, and deserves no protection under the Copyright Act.

Either DeCSS is speech, and is thus protected by copyright, or it's functional and deserves no protection.

Am I missing some fundamental point in the law here? How can we have it both ways?

If DeCSS is ruled functional and not speech, or at least "more functional" than speech, will I have a legitimate argument to make about making unauthorized copies of copyrighted software?

Re:The judges

[Ioldanach]

This little exchange reveals that the judge has only a poor grip on what digital storage is.

In this segment they were discussing a comparison to analog copies, and the indistinguishable comment referred to an analog copy.

Interesting

[Legion303]

Sullivan: Your Honor, the judgment below has cast such a chill throughout the scientific community that professors such as Professor Felton of Princeton, who was one of the witnesses below, have stopped speaking at scientific conferences, lest the recording industry bring actions against him. The idea that there would be wide discussion of alternative technologies to protect this is itself questionable now that this chill has been cast, but let me just suggest there's one narrower way you might go. We suggest that you vacate the judgment below, that you reverse the judgment below and vacate the injunction in its entirety, but should you disagree with that, you should at least make a belinking[?] - the anti-linking provisions of the injunction which are of the District Court's own invention and go far beyond the statutory terms of 1201(a)(2). He said that you can't even post instructions on how to get to DeCSS - an address.

Judge: No, he didn't say "You can't." He said "This defendant can't."

Sullivan: He said, "This defendant can't."

Judge: He didn't say "The world can't."

Sullivan: That's correct, Your Honor.

Judge: And most of the briefing here is as if he issued a worldwide injunction. If it was a defendant class of all journalists, professors, researchers, citizens of the world - it's a very precise injunction.

And the lawyer didn't even mention the fact that the MPAA's threatening letters use the injunction to try to intimidate others who post links, as if it were, in fact, a worldwide injunction. Pity.

She seemed a little unprepared for this hearing.

-Legion

Re:Interesting

[WhiteWolf666]

Its more a case of the Judge not really understanding what is going on--- The interruptions are so Judge X can clarify points of the compound arguments Sullivan was making. Also, Judges generally are overzealous when it comes to asking questions of anyone-- The "tone" of their questioning does not always reveal their opinon on the matter, but is just them exploring the ramifications of an argument. My reading of the transcript did make it seem like the judges bought a couple things: 1. Digital works in the public domain effectively have their copyrights extended indefinetly (unless the MPAA decides to be really, really nice about it) 2. DeCSS does not necessairly contribute to infringement- there are non-infringing uses of it. 3. Perhaps a narrow regulation must be implemented- they seemed almost scared talking about things like #1 above, and also about research, what not...... Things they seemed wishy washy on 1. The injuction is limited to the defendants, so it does not require reversal. However, their questioning about linking arguments with respect to the times, for example, might make this a vary salient point. 2. Sullivan's argument that even if DeCSS does not require strict scrutiny in regards to the First Amendment, the 'weakest' test is the Turner test, which requires demonstration of harm, not just prediction of harm. I'll stop here, because I forgot what else I wanted to talk about, and it really doesn't matter anyways, the salient points of the case are the ones above, I think. This finally argument, about the Turner test, seems fantastic to me. Perhaps a real lawyer type would be willing to explain why it is not a show stopper. I mean: 1. Kaplan says DeCSS is a form of speech, one that is regulable, and is not protected by strict scrutiny, but instead by a lower stander, the Turner test. 2. Turner test requires proof of harm. Period. 3. Turner test therefore indicates this is protected speech. Done. Go home. hmmmm

Re:Interesting

[WhiteWolf666]

ehh....not really It is moot, I think (well, maybe not moot in the legal sense, but essentially). Judge clarifies this with saying if MPAA tried to do it again, this would not be usable as precedent, and infact, there would be stuff in Kaplan decision that would be usable defensively. But if they refused to reverse this injuction based upon this stupid argument........ .....I pity us :)

Re:Interesting

[The Smith]

Color blind people don't see in b/w. They only lack the red, green or blue components of an image. B/W films contain all 3 of these components to equal extents - that's what makes them gray.

Re:Interesting

[Hater's Leaving, The]

The Judge needs counselling, or at least training into not coming over as if he thinks he's god.

Example -

Sullivan: [half a sentence]--
Judge: -- but [something]
or
Judge: -- but [something else]
or
Judge: Is it?
or
...

I know that the judge is probably trying to cut through the BS, but still I thought he came over not too well. That could be because to my color-blind eyes this case is black and white, and the judge _hasn't_ cut through enough MPAA BS yet.

THL.

--

Re:Forrest, Trees. Drain Swamp, Alligators.

[superkorn]

If they did what you suggest, and make this a fight only about linking, then they are implicitly conceding that DeCSS is illegal.

The terms of the debate are very important here: what you suggest would make this a debate about linking to illegal material. Hence, DeCSS is illegal, and we have already lost one battle.

There is no reason to let the MPAA set the terms of the debate in this way. DeCSS is NOT "another fight for another day" because if we don't fight for it now, WE LOSE. There will be no other day.

The fight should not be focused on linking to illict material, because the entire point here is that DeCSS should not be illegal! All it does is give you back fair use rights you should never have lost in the first place. Furthermore, the issue of whether or not source code can be considered speech strikes me as one of the more important tech-related issues which the courts have considered so far. This case has raised a large number of very thorny issues, and we shouln't ignore any of them, or we may come to regret it in the future.

Re:Because that is totally irrelevant.

[BradleyUffner]

Well, I doubt you could legaly feed it to your dog, that would be crulety to animals. the SPCA would eb on you like lightning :)
=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\ =\=\

DeCSS has *very* little to do with copying DVDs!

[Pheran]

I find it amazing that in these cases they always completely ignore the fact that you can make perfect digital copies of DVDs without using DeCSS at all. Assume you have a DVD burner. You simply read the bits of the original DVD, and burn an exact copy. No DeCSS, no decryption, no nothing. The copy will work fine.

How about this? You extract all the bits from the DVD and put them into the DVD equivalent of an ISO image (this may not exist yet, but it will). You then post that image on the Internet. Someone downloads it, burns it onto DVD, and voila, illegal copy, again without DeCSS. Sure, right now these images would take forever to download since they'd be several gigabytes in length, but network technology is improving all the time. That issue will go away given time.

DeCSS does nothing to aid Internet piracy except that it allows you to recompress the DVD into a smaller and *lesser quality* format. Which means there still great motivation for going out and getting the original.

Re:Heh..pickles?

[Artagel]

This is clearly a rough transcript prior to corrections by the attorneys. I would not be surprised if the court reporter transcribed "pixels" as "pickles."

Thoughts on DeCSS injunction

[reality-bytes]

I'm not gonna sit here and suggest that people circumvent the injuction; however I had a lil' thought on this:

What if you were to write a program which is not DeCSS but has the same functionality as DeCSS. - Surely the linking injunction which only applies to DeCSS would not apply here.....

Its probably just a cute way of staying one step-ahead. Question: Are there an ifinite number of ways to write a program which has the same function? :)

Re:Thoughts on DeCSS injunction

[reality-bytes]

Perhaps then the programs primary function should not be to decode DVD - that could be an auxilliary function of the code :)

Hows about a DeCSS style device built into a spreadsheet program :P

Re:Thoughts on DeCSS injunction

[dh003i]

For a defiend function, there are an infinite # of ways to write a program. However, this is ONLY ONE optimal way to write a program(that is, the way w/c makes the asm output as small as possible, and thus makes the program run as fast as possible and on as little RAM as possible.)

Re:Free speach?

[tkrotchko]

Free speech is in the constitution to permit people to criticise leaders.

I fully realize this may have been put up as a troll, but I hear this enough in everyday life that I think this bears discussing again. The guys who wrote the US constituion were pretty clever. I think part of being clever is that your writing style is clear, and to the point. Legalese may impress some, but I always think its a way to cover up the fact that you can't express yourself very well.

Looking at the 1st amendment is says:

Congress shall make no law [...] prohibiting the free exercise thereof; or abridging the freedom of speech [...]

I've clipped just the mention of religion.

Note the language is unequivacal. It says "no law". Not "political speech is protected". It gives a blanket "no law".

In practice I realize this means that some laws do get passed restricting speech (the overworn example of shouting fire in a theater). But in all cases the law has to assume that speech is protected unless an overwhelming societal need exists to curtail that protection.

Protecting the MPAA would probably not fall under that burden.

I think as soon as the judge accepts DeCSS is equal to speech, he almost has to rule in favor of 2600. I think the questions from the judge show the thinking in this respect. They're looking for a good reason to call it speech.

Re:Forrest, Trees. Drain Swamp, Alligators.

[Lord Omlette]

If you're a programmer, you should care. One of the biggest thingees about this case is whether or not source code counts as free speech, and the courts have basically ruled against us. In the words of that comic strip kids, "Why is it legal for us to publish plans for an atomic bomb but illegal to publish plans to decrypt dvds?"

Peace,
Amit
ICQ 77863057

uh huh

[Lord Omlette]

They bneed [sic] to look no further than Students being FORCED to buy all their books on DVD at NYU to see the obvious far [sic] use implications.

I'm an NYU student, and I wasn't forced to buy and books on DVD. Hell, I wasn't forced to buy any books at all. I remember in one class lending my book to other people because they weren't forced to buy it either, and they obviously didn't. Feel free to elaborate.

Peace,
Amit
ICQ 77863057

Re:uh huh

[Lord Omlette]

"Your next."

My next? My turn next? Ok, yes, I take Japanese at NYU, our class used "Yookoso! An Introduction to Contemporary Japanese" and it was a great book, I highly recommend it as a matter of fact.

Peace,
Amit
ICQ 77863057

Typo! Wednesday was May 9th, not May 10th!

[Oscar26]

Check out the last line, they said Wednesday May 10th, 2001. Actually Wednesday was May 9th, today (Thursday) is May 10th. I should know, it's my birthday!

I'd add some relevant comments, but most of what I feel has already been represented in this form.

Schweet.

[Leven Valera]

Sullivan:We suggest that you vacate the judgment below, that you reverse the judgment below and vacate the injunction in its entirety, but should you disagree with that, you should at least make a belinking[?] - the anti-linking provisions of the injunction which are of the District Court's own invention and go far beyond the statutory terms of 1201(a)(2). He said that you can't even post instructions on how to get to DeCSS - an address.

Judge: No, he didn't say "You can't." He said "This defendant can't."

Sullivan: He said, "This defendant can't."

Judge: He didn't say "The world can't."

Sullivan: That's correct, Your Honor.

Judge: And most of the briefing here is as if he issued a worldwide injunction. If it was a defendant class of all journalists, professors, researchers, citizens of the world - it's a very precise injunction.

Re:Because that is totally irrelevant.

[msaulters]

Ahh, but the region-check is not built into the hardware. They are pursuing just as doggedly any hardware vendor who provides means to circumvent the region-check. Also, the MPAA is not in control of the players, but rather the DVD Copy Control Association http://www.dvdcca.org, arguably, a tool of the MPAA.

The MPAA is in this case concerned over the control of their copyrights, which led to the argument I found most interesting, and analogous. What happens AFTER the copyrights expire? It was interesting to note the discussion that the current encryption was sub-standard, and thus the law was intended to provide for future protection, when encryption technology for copyrighted works had improved. If you're going to argue the law is about protecting the future, then you must take both sides of it. Not only the future protection of copyrighted works, but also the future use of works which have fallen out of copyright. I find it *laughable* to think of the MPAA or any other former copyright holder coming out and distributing a work in an unencrypted form after the copyright has expired. I find it much more plausible to think, instead, that they would release an encrypted DVD with some token NEW AND COPYRIGHTED content, which would of course be encrypted along with the old content which had fallen out of copyright. As I read the transcript, I could vividly see and hear Sims attempting to supress a snicker as he suggested that the industry could make copies of older movies available. Of course, we're talking about something 99 years in the future, or more... if they go back and get Congress to change the term again.

On the Street Where You Live

[Wintermancer]

One part that I find amazing about the 2600 DeCSS linking fiasco is this: they are just telling people where to find something.

Imagine that someone asks you, "Where are all the hookers in this town."
"Downtown."
"Where?"
"On Main Street."

"Where can I score some crack?"
"The crack dealers."
"Where?"
"Any freaking street corner, buddy."

"Where can I get materials for a pipe bomb?"
"Home hardware and any gun store."

Etc.

So, why is, "Where can I find DeCSS?" any different? The MPAA and DMCA says so.

Go figure.

Re:On the Street Where You Live

[Wintermancer]

"Intent"? Last time I checked, the U.S. Constitution was pretty liberal in defining "the Press."

If some nutcase has a newspaper calling for the masses to rise up and burn their elected respresentatives (not a bad idea, when you stop and think about it), he's protected.

If he lists:
- Exxon as a source of gasoline
- MatchCo as a source of matches
- The U.S. Congress as a source of combustables

He's protected.

Now, if he goes out and says, "If you go and burn Politician(x), I'll personally pay you $10,000." now he's fscked.

Re:On the Street Where You Live

[mark_lybarger]

from what i understand, the reason 2600's links are precieved illegal, and the NYT isn't, is because of their implied intent. they're a "hacker" news place, and they're giving instructions on how to get "illegal" software, while the NYT was merely reporting a popular story to the masses. the implied intent is that people will get the software, and use it. i suppose if high times mag would provide written directions on how to grow your own, it would be a similar situation? (they don't actually print those sort of instructions do they? :) ) if a "wacked out teenagers" web site were to list directions or links to how to make pipe bombs, and directions on how to blow up the school, that would be similar. implied intent.

Re:On the Street Where You Live

[Bobo the Space Chimp]

They did point out that newspapers can publish the address of a crack house, and presumably even the price and the password to get by Bruce Da Crackhead Door Guard.

However, it was pointed out that if the purpose of the publication is not general information, but to facilitate and encourage (from what I read) people to go there, then it might be illegal. They didn't really go into that strike/sign case, but that seemed to talk about that.

Is the link in this case part of the system of ripping open DVD's?

Forrest, Trees. Drain Swamp, Alligators.

[Wintermancer]

Why, oh why, did the EFF have to get entangled in the kind of fight the MPAA will ultimately win?

Who cares if DeCSS is legal or not? For the purposes of this fight, it is about linking to illicit material. Worry about the DeCSS another day.

By getting dragged down into defending DeCSS, they are busy fighting the alligators (MPAA), and forgetting to drain the freaking swamp (Consitutionality of limiting the press in this regard.)

The argument should have been, "Look, by saying that we cannot link to something, that is like telling the New York Times that they cannot say that you can go to Amersdam to smoke pot. Do we limit that. No. "

Really. That's what it is all about. DeCSS and the legal quagmire that surrounds it is another fight for another day. Now, someone, please go a bitch smack the lead counsel for 2600 and get them back on track.

/. not useful without login

[Karrade]

Slashdot really undermines its ability to be used by guests b/c of its thread organization. Just about everyone who uses /. regularly is logged in and therefore sees highest posts first. Try looking at it with oldest first, and its a mess. You get a lot of score 1 stuff that's not very good above score 5 posts. (its faster and to write and submit a one liner with little thought than a coherent response)

Imagine if someone sent a link of this /. article to Sullivan. She would click on the link and just see a mess. No one has the time to wade through all of it; that's what moderation is for!

And the defense of "well they should just get a login" is silly and somewhat hypocritical. Why after all do people post links to non-login NYTimes articles? If you don't come to /. that often you shouldn't have to go through the hassle of a login to get something worthwhile out of it. It just hurts /. and doesn't help anyone.

If guest users were defaulted to highest post first, I think people like Sullivan would appreciate /. a lot more.
And the insightful posts would get far more use and recognition.

Karrade

Re:Heh..pickles?

[Frank T. Lofaro Jr.]

Blue pickles???

Re:Also in audio...

[WhiteWolf666]

Yeah, whatever. They are generally(judges, not necessarily these judges) as inqisitive as possible in order to determine the specifics of an argument. Just because they ask a question, doesn't mean the question reflexs upon their opinon. I just means that the context of that question is an issue than could(yes, could....they ask a lot of bunk question to) have legal ramifications

Hmmm....Notion of copyright Please somebody answer

[WhiteWolf666]

This is important. I think. Some lawyer type explain to me why I am wrong, because I am sure I am. 1. In order for something to be copyrightable, it must be a) recorded is tangible form somewhere b) expressive, original content 2. Computer software/code can be registered for copyright. (The Copyright office does not have any specific catagory for it, but says it can be considered a literary work) 3. Therefore, Computer Software/code is expressive work, and protected by the first amendment, under the strictest scrutiny. It seems like if 2600 would make this argument (assuming the argument is valid), they win. 'Nuff said Also, if this argument is not valid, it seems like software is not copyrightable. (Instead of being expressive context, it is merely the an algorithm, not something created, but something discovered. This maybe patentable, but I do not think it is copyrightable.) hehe.....that would make a mess of the computing world.

We are just screwed

[WhiteWolf666]

I guess the resolution to this is just that we are screwed.

Isn't it interesting how the various relms of law, as they get broader and broader, slowly dissolving the rights of the consumer often catastrophicaly demonstrate this where they intersect

Its just sad.....

There really isn't anything we can do. Judges are to establishment to dig such a big hole in either realm of the law.

The idea of essentially legitimating supposed napster style distribution of movies on the internet scares the hell out of them

The idea of eliminating copyright protection from software, and destroy a good portion of the computing industry.

What will probably happen is the the court system will (in a contradictory way) rule that software is functional speech, and software is protected by copyright. They will simply refuse to make the logical jump that software not being expressive invalidates the notion of software copyright.

Its really really sad

Audio Available for MPAA vs. 2600 Appeal Hearing

[lispbliss]

There is audio available in mp3 and realaudio, streaming or downloading, at http://www.2600.com/news/display.shtml?id=397

Turner case checkmate?

[ave19]

I'm worried that Sullivan wants Turner to apply as a minimum standard for deciding the issue.

Mr. Alter (the government) states that Turner can be applied directly but Mr Sims states it doesn't apply at all.

How can Sullivan argue against either of them without enhancing the other opponents case?

(IANAL)

Heh..pickles?

[tbaggy]

"You paid your $25 for "Schindler's List," you took it home, you're color blind. You want to use DeCSS to download it and change the pickles from blue to green so you can see it better." Are there pickles in Schlinders list?? :) Good point even if he was referring to pickels, or pixels.

Re:Heh..pickles?

[dynoman7]

I thought "Schindler's List" was in black-and-white...

I don't know. I'm color blind. 8^)

Re:Heh..pickles?

[BIGJIMSLATE]

Wait, so the pickles would have to be blue to be turned from blue to green, right? Has anyone SEEN a blue pickle? (Everyone from Russia and Three Mile Island, lower your hands now).

Re:Heh..pickles?

[dhamsaic]

it is. it also isn't available on dvd. oh well...

Re:Heh..pickles?

[dhamsaic]

yah. i just find it humorous that a movie that is black and white *and* isn't available on dvd is their example of a movie that someone could rip from dvd and change the blue to green in... way to research, guys...

Interesting

[Smuffe]

A very interesting read! As much as the legal mumbo-jumbo is incomprehensible to me, I thought Sullivans arguments got through to the judges, but maybe I have got the whole thing backwards. The only thing I want to do is watch DVD's in Linux, and give others the same opporunity.
/Smuffe

Re:Is this intentional?

[AntiNorm]

It may be illegal under the antitrust laws, but only by a firm that is using tying to either attain or solidify monopoly power.

This sounds exactly like the MPAA.

---
Am I the only Slashdotter who is sick and tired of losing 9000 karma points every time they moderate?

Warning: This is a Rant

[ostone]

It seems very much like the judge smacked down any and every argument. That is not to say they were not good arguments... it just seems very much like the lawyer hadn't put enough though into the rebuttles that She could and must expect. Speech is only as free as the money you can spend to defend it. Democrasy, hah, this Country is ruled not by monobolies but trusts. I have yet to understand how this system (MPAA, CSS) is not infringing the Anti-trust laws. These companies in complete control of the media and the forms of access seek to destroy the competition by saying fair-use only protects non-encrypted data... and if it's copyrighted those who decript MUST be trying to infringe upon their copyrights. GPL the world... that way Microsofts so called infection will infest the world with, god forbid, freedom.
#set prompt = $user.$group @ `hostname -s`#
root.wheel @ reality#

I love it!

[Spameroni]

Judge: Let me go back to the linking part -- intrigues me and somewhat troubles me. You use the bus example, the carrying of information. I'm just wondering, if you have something that clearly can be considered contraband, such as obscene works, you can prosecute trafficker in obscene works. Can you prosecute the newspaper that publishes a list of bookstores that carry obscene works?

IANAL...

[Misch]

IANAL (I Am Not A Lawyer), and after reading that transcript, I'm glad I chose computer science over law.

"Owww... head is hurtink very much"

not a court steno

[streetlawyer]

A court steno machine would be extremely unlikely to screw up "amicae", and in fact cryptome notes:

8 May 2001 Source: EFF, with thanks for transcription of audio tapes by San Francisco firm of Farella, Braun and Martel. EFF emphasizes "that it is NOT an official transcript, just one that a volunteer did for us."

In other words, "Misheard" was an absolutely accurate criticism.

"the Umeki"

[streetlawyer]

heh. You'll see numerous references in the transcript to "the Umeki". Don't worry, the court hasn't been invaded by any mysterious gray-skinned race. The person taking the transcript misheard -- these are the "amicae", the friends of the court, the people who filed amicus curae briefs. Perhaps cryptome might care to correct this mistake; if they do, this comment will have become redundant.

I'm not paying for data that I can't use

[|/|/|||]

Normally when you buy something you can then modify it in whatever manner you wish. Cut it up, add to it, etc. You can't modify a copyrighted work and redistribute it, but you can certainly modify it and then not distribute it.

So, basically what the MPAA is saying is: Here - you can buy this, but you can't modify it (i.e. move the bits around, reorder them, add to them, remove some of them, whatever). You have restricted use of this data that you are paying for.

Well, isn't it reasonable that we, as consumers, should only agree to pay a minimal amount for this limited use of the product? Aren't we, in effect, only leasing it? It must still belong to someone else, if that other entity can decide what I do with it.

I won't pay more than a couple of bucks for data representing some piece of entertainment if I can only use in a limited fashion, so I hope DVD prices will be coming down significantly in the near future, or I'll be forced by the MPAA to steal. They can only blame themselves.

Re:Free speach?

[bernz]

yes. free speech as a John Locke kind of concept is a universal right. Free Speech as defined in a LEGAL concept is NOT. Free Speech in this country, as defined in FEDERAL contexts is for criticising only.

I agree that people should have all the darn tooting rights they want, however law is law and it is enforced by men with guns, so i shrug and go against it in my own way. cheers!

I'm not a lawyer, so i could be very wrong, but i've always been told that "free speech" isn't so cut and dry and the Supreme Court has always upheld that concept.

-----

Re:pickles?

[Happy Monkey]

And most of the movie was in black and white. And even if it wasn't, wouldn't the pickles have been green to start out with?
___

Intentional Cereal

[aserra]

Even worse, you go across a state line, purchase a box of cereal, take it home and find otu you cannot open this new box of cereal with the opener you purchased in your home state.

Also in audio...

[Jetifi]

Here. Listen, and you can hear that at least one of the judges was most definitely not impressed with the arguments - specifically, that DeCSS is required for fair use, and that code is free speach.

This is cool...

[Junior J. Junior III]

I like being able to sit and actually read court transcripts, assuming they're not too dry and technical. Whether you agree with the argumentation or not, this is the way democracy should work -- at least in a democracy where, increasingly, the law seems to be defined by the courts as much as by the legislature. Far better than an out-of-court settlement with undisclosed terms and sealed documents.

Re:Free speach?

[ponxx]

"Free speech is in the constitution to permit people to criticise leaders"

Free speech is not restricted to criticising your leaders, but a universal right! It allows me to say that Bush is an idiot, that there is no god, or that the world was created in 7 days. Or that 2+2=5 as for that. If you start restricting these rights to political speech you're down a very slippery slope and soon there will be a debate on what is political anyway...

Being allowed to describe a technology is certainly part of it. And the fact that a coporation could lose money from you exercising your right to free speech is absolutely no argument whatsoever. A big-business dicatorship is just around the corner if you go there (well, in reality that's the status quo anyway, but let's be idealistic and pretend we live in a democracy at the moment :) )

You can protect your innovation by keeping it secret (e.g. Coca Cola's formula) or by applying for patents, in which case it gets published but you have to pay fees to use it. It should be prefectly legal and legitimate to describe how a technology works, or even how to exploit loopholes. AFAIK it is legal to publish bugs and security exploits on the web.

Anyway, what i'm wanting to say is: all speech is protected by the constitution, no disctinction is made between political / religious / legal / techie or business speak! It would have been illegal to break into some company and steal the decryption technique / keys. But I can't see how publishing information obtained in a legal way (or even just linking to it, which is very clearly just speech) could be illegal...

(The DMCA makes attempting to circumevent an encryption scheme illegal (i think) and i can't see how that can possibly be consitutional!)

Did anyone notice?

[dh003i]

Ok, this woman is a pretty good lawyer, but did anyone notice she said something really dumb?

"You paid your $25 for "Schindler's List," you took it home, you're color blind. You want to use DeCSS to download it and change the [pixels] from blue to green so you can see it better."

Schindler's List -- except for one brief part -- was ENTIRELY IN BLACK AND WHITE. There are no "blue pixels" to change to "green pixels".

This trial's disgraceful

[dh003i]

It was clear the judges were biased. They did not ask ONE hard question of the lawyers representing the MPAA/CSS concerns. They asked hard questions of Ms. Sullivan but questions a fucking 1st grader could answer of the MPAA/CSS lawyers.

Re:Very interesting - you have to wonder

[OutOfMind]

As the saying goes...

The First Amendment doesn't exist to protect the speech we like by the people we like. It exists to protect the speech we detest by the people we loathe.

~k

Re:Why does Sullivan fail to mention the Linux use

[Cardhore]

How do you speak question marks?

Re:Is this intentional?

[Microsift]

Of course not, this case will obviously go all the way to the supreme court, unless the Supreme Court decides not to act. If 2600 wins, MPAA will certainly appeal!

Re:Is this intentional?

[JaredLeto]

Sullivan also missed a VERY important point here - she said that to provide fair use it was possible to record the DVD to an analog recorder and use that, but in most cases that's not true because of Macrovision. This same law has also made circumventing Macrovision illegal, as evidenced by the fact that Go Video had to specifically add hardware to their dual-deck recorders to make them honor Macrovision.

Re:Is this intentional?

[grammar fascist]

In other words, there is no license!

Well, then you can't watch it.

If I buy a video, it is most likely licensed for home viewing only. Can I play this in a public place because me and the guy at the checkout counter didn't go over the license before I bought it? Did I have to sign something?

A copyright license does not have to be signed by the purchaser to be valid. And DVD's are most definitely not sold with the same restrictions that come with the purchase of a book - the license is completely different. Remember - you own the medium, but the artist (or whomever he sold out to) owns the work. He can license it to you in any way that he wishes, with any restrictions, in a binding contract, without a signature. The contract is valid until it is struck down in court for violating the doctrine of first sale, fair use, or whatever.

I don't necessarily agree with it, but that's how it is.

Re:Free speach?

[JohnDenver]

>Isn't calling free code and deccs for free
>speech just bullshit really?

It has *everything* to do with free speach
and your rights to publish any sort of work.
Let's start by pointing out that DECSS is a
set of instructions which allows a third party
to make use of a popular digital format. This
is analogous to someone reverse engineering
Microsoft Word's file format and publishing it
so software developers can create compatible
readers/word processors/report generators, etc.

In case you still don't understand, it's a
set of instructions in a variant mathematical
notation, that TEACHES people how to use a
popular format, much in the same way one
would teach someone not familiar with this
notation using standard mathematical notaion,
english, and/or diagrams.

If it was in English, would you still
NOT call it free speach?

Here's the catcher, the advantage of using
this notation, C souce, is that it can be
converted into a series of instructions
that can be executed by most microprocessors.

Does the fact that there is a tool to which
allows this notation to become functional exempt
it from being free speech? What if there was
a tool that converted the English instructions
to microprocessor code, would it still not be
free speech?

IMO, This is the same as a reputable publishing
company publishing an article in a technical
publication describing how to write software
that reads a Word file, and providing source
code example. (Of course, given Microsoft
didn't publish the word format already)

>Free speech is in the constitution to permit
>people to criticise leaders. This is really
>important in a democracy. If this isn't allowed
>politicians can more easily manipulate the
>public so they don't know whom they really vote
>on or what they stand for.

So it also has nothing to do with speaking
about my religion, philosophy, exhibiting art,
publishing books which have a controversial
element? Free Speech has nothing to do with
teaching people how to write software that
is compatible with CSS, either by lecturing,
written, or providing example source code?

The ability to criticise a leader is
important, but even more important is the freedom
to educate the people especially if the curriculum
is contrary to what the leaders advocate. More
importantly, it is the freedom to educate is
nessecary as it is the best tool we have to keep
the public less susceptible to industry/political
manipulation.

>How have ripping of DVD anything to do with this?

Lastly This has NOTHING to do with ripping of DVD's, it
has everything to do with the freedom of writing
software that can read DVD's, just like the
freedom of writing software that can read Word files.

The reason the MPAA is pissed is because there are
alternative formats which would dramatically
reduce the footprint of a DVD, making it more
convienant to pirate, and because the encryption
scheme is a tradesecret from which they derive
revenue selling the "secret" to companies.

Not like you knew that...

Good MPAA analogies- at least when unquestioned

[Faies]

Judge: What is it? From the industry standpoint, what do you suggest?

Sims: Well, the industry could make copies of older movies available, but the fact is that fair use has -

Judge: In non-digital form? Is that what you mean by copies?

Sims: Yeah, well, or in unencrypted digital form. There are many paintings, Your Honor, for example, which have long passed out of copyright, but that doesn't give me a right to go into someone's living room and look at them. There are motion pictures that are screened in theatres, and a condition of entrance is ordinarily that you cannot make a - take a camera in with you and make a copy of that. Those kinds of restrictions that govern access are privilege of copyright owners or former copyright owners, and they do not raise First Amendment problems to the existence of those property rights.

Nobody has really brought this up yet, but I feel it might potentially have the most damaging effect the the defense if not answered adequately in the future briefs. Here the plaintiffs have brought up a pair of analogies that are completely correct, or at least to the point where they are fully acceptable by the public.

Naturally the defense did not have a chance to respond as this was the final argument and the afterward speeches were already prepared. The defense better mention that these two examples are of cases where the intended viewer is *NOT* the owner of the copyrighted works. In the case of the DVD players and such the user has bought their DVD and supposedly can do whatever he/she likes with it under the principles of fair use. Without these analogies in play, the MPAA hopefully will have little other precendent in any other argument.

Another note about code being a language and such. Why not play descramble.mp3 in front of the court? Also, if somebody would make a compiler for the English language (I suppose that couldn't include slang and exceptions though), could we get English instructions banned as well? (Making bombs, that sort of thing) Anybody think it is possible?

Re:Corruption

[daniel_isaacs]

They're not circles, really. More elliptical from a distance. Closer inspection finds no discernable pattern.

Corruption

[daniel_isaacs]

One of two things has happened:

1. I've been brainwashed by the deluge of anti-mpaa sentiment in the circles I travel.

or

2. The mpaa just doesn't have many decent rebuttles for the defense's arguments.

Don't we all want green pickles?

[WebMasterJoe]

From the transcript:

You paid your $25 for "Schindler's List," you took it home, you're color blind. You want to use DeCSS to download it and change the pickles from blue to green so you can see it better. Cant' do that, can't use DeCSS to do that.

I have to watch that movie again. I totally missed the whole blue pickle scene...

And isn't its ability to change the color of pickles considered "fair use" for DeCSS?

Re:Is this intentional?

[nightfire-unique]

Yikes.

I didn't realize that it had been defeated in the US. I was talking to a Canadian lawyer about it, and he was the one who implanted these strange ideas in my head. :)

Amazing what they can get away with, these days. :/

--
All men are great
before declaring war

Re:Is this intentional?

[nightfire-unique]

To go beyond this, another interesting thing to contemplate is this: once you have purchased a software package, you have purchased the right to execute the code. While this right is not inalienable (it can be removed with a contract), you did not sign or agree to any contract when you purchased the software. The window that appears (which is NOT a contract) is merely a bug in the software preventing you from entering.

It would be nice to see this argued in court. It would put to an end all of the aggressive behaviour on part of the BSA, at least.

In summary - In order for a contract to override the rights granted during the purchase of copyrighted material, the contract must be signed by both parties at the time of purchase (not afterward).

--
All men are great
before declaring war

Very interesting - you have to wonder

[baptiste]

You have to wonder though - if the judges feel 2600 was right/protected in what they did will their status as 'crackers' in teh judges eyes - will that have an impact and how much. I mean judges are ALWAYS supposed to be impartial, but it would kill them, establishment types, to rule against the establishment regardless of the merits of the law.

I'm not saying they will and I have faith in our judicial system most of the time. But in this case, the MPAA is stepping WAY overboard and a ruling against 2600 would have some major implications in many areas.

--

Re:Very interesting - you have to wonder

[Hater's Leaving, The]

I think the Judges have not too much patience with the MPAA los^Wawyers too - the first exchange between them:

"
Judge: Well, it isn't precisely. There's no - you can't make fair use of navigational systems but you can make fair use of copyrighted material.
"

I translate that as:
"
Judge: You're a plonker, now cut the BS.
"

Amen to that.

THL.
--

Re:The judges

[eXtro]

This little exchange reveals that the judge has only a poor grip on what digital storage is.

No, it doesn't reveal anything of the like, its a valid question. Digital storage isn't a panacea, its still subject to the axiom of 'garbage in, garbage out'. If digitally copying VHS tapes and potentially distributing them was the issue then it would still be digital, but wouldn't be a perfectly true copy. Look at a Tivo, it makes digital copies of television, but those copies can't be defined as a "Perfectly true copy".

Yes, subsequent copies will not lose any information, but they'll be perfect copies of a lossy copy.

Re:Ah, but...

[Fobi]

>And even if it were pixels, Schindler's List is mostly b/w, isn't it? I can remember some red, but blue? :-)

How would whe know? He is colour blind! 8)

Download in MP3 & RA format

[anon757]

You can also go download the actual recording of the hearing in mp3 or real audio format, from 2600.com

Re:Is this intentional?

[anon757]

And that, my friend, is precisely what is wrong with copyright/IP law.

Re:Because that is totally irrelevant.

[anon757]

What you said is misleading. It's only partially true that DeCSS was not written DeCSS was not written for the purpose of playing DVDs on Linux. True DeCSS doesnt play DVD's on Linux, but it wasnt written for pirating DVD's either. It was more written as a proof of concept program, as a step on the way to a Linux DVD player.

Re:Is this intentional?

[anon757]

Bite me.

Re:Why won't the MPAA just roll over and die?

[dachshund]

MPAA must have lost it five times already

Hmm? I'm sorry, I thought it was 2600 that lost the first time around.

As the judges pointed out (and the MPAA probably wanted to shush them), this case is all about the next generation of encryption technology. They want to know that they have the law on their side before they start to release technology that can't be printed on the back of a t-shirt. And it looks like they may well win this one.

Understanding copyright

[dachshund]

The other posts really said it all, but it's also worth pointing out that copyright law is not like property law. It's easy to confuse the two-- reading this transcript, it's clear that the MPAA would like the two to be more similar. But they're not.

Copyright law has always been a contract between artists/publishers and the public. We (the government, actually) agree to police ourselves, prevent unauthorized publication, and allow copyright holders the ability to enforce limited restrictions on how content may be used (performance, etc.) The flip side of the coin is that those limitations are very clearly spelled out. Anyone has the right to use copyright materials in a number of ways without breaking the law, and the copyright holder cannot simply add restrictions as he/she/it sees fit. If the customer agrees to a license, the situation changes. But I have never signed a license when purchasing a DVD, therefore the holders of those particular copyrights have a very limited ability to tell me how I can use that content.

The DMCA expands copyright holders' rights, but even that broad law specifically refused to impinge upon fair use and other existing aspects of copyright law. That's why this whole thing is in court. We'll see how it goes.

Re:Is this intentional?

[dachshund]

I'm not sure if the "point a camera at the videoscreen" suggestion impressed the judges much, however the availability of analog versions of the content did. I was really disappointed that Sullivan never mentioned the existence of material that simply does not exist in analog form-- thereby eliminating all possible fair use. Further, she might have suggested that this class of material is only going to expand in coming years.

"Horse and buggy vs. automobiles" was a silly analogy. Something like "printed books vs. illustrated manuscripts" would have been much more appropriate.

The biggest lie of all

[The Smith]

I can't believe that nobody picked up on this one:

Sims: But I don't think it's the case that the existence of encryption precludes use.
Judge: Well again, we're back to it does preclude use in digital form.
Sims: It -- well, it precludes perfect digital duplication, that's correct.

Either Sims has no idea what he's talking about or he's being deliberately misleading (which is, after all, his job). CSS precludes use. It does not preclude duplication whatsoever. The real DVD pirates, the ones that the MPAA should really be trying to stop, make a verbatim copy of an encrypted DVD onto blanks. Cryptology is used nowhere in this process.

Of course, what the MPAA professes to be afraid of is that movies will unencrypted and made available over the net. This is indeed one possible use of DeCSS. But even if this was feasible - remembering the current net connection speeds of most people - it would not be sufficent to justify the outright banning of DeCSS, or the gagging of legitimate scientific discussion among cryptologists about how CSS works.

I repeat: DeCSS does not enable copying. Copying is quite possible without decryption being used.

Re:Because that is totally irrelevant.

[The Smith]

Do you find it irrelevant that the MPAA maintaining proprietary control of CSS encryption means they and they alone can approve the writing of all DVD players? The MPAA will inevitably refuse to approve an open-source player, because any random programmer could easily bypass the region check they demand.

True, DeCSS was not written for the purpose of playing DVDs on Linux. But the ideas it contains have made it possible for anyone to write a DVD player, with or without permission from the MPAA. This will certainly allow wider use of the new technology.

Well, this is to be a good read

[MxTxL]

I really liked the cliffs notes version that was a discussion several days back when it first happened. That commentary seemed well informed but perhaps a bit biased. It will be interesting to see the difference between that and what REALLY happened

Is this intentional?

[karmawarrior]

Sullivan manages to undermine her argument by suggesting that someone can always use a video camera to tape a copy of a DVD being played on approved equipment, and then suggests that DeCSS is speech because it can be written as a hiaku, rather than suggesting that it's speech because it's a list of instructions for decoding CSS encrypted content - something that's unquestionably speech.

It's as if the intent is for 2600, etc, to lose this case. Is this so it can go to the Supreme Court and be ruled upon definitively, or is it just bad lawyering?
--

Re:Is this intentional?

[dfalgoust]

No, his argument was related to region-coding requirements for DVD players. He was basically saying that the makers of DVDs (i.e., the studios) are effectively tying sales of DVDs to sales of region-limited DVD players because licensing the DVD decryption scheme by DVD player manufacturers requires that those DVD players be region locked. His point hand nothing to do with VHS recorders.

It's an interesting argument, but one that doesn't really square with antitrust precedent.

First off, I can't think of any case where this kind of roundabout tying found to be an antitrust violation; every case I've ever read involved tying by the same firm (example: a shoe machinery company tied sales of the machine to long term service contracts).

Secondly, this isn't really "tying" as traditionally understood; this is really just an ordinary licensing restriction. If merely putting conditions on the use of a license constitutes "tying," then that would impact an awful lot of licensing agreements.

Re:Is this intentional?

[dfalgoust]

Not quite. The MPAA is not trying to attain or solidify monopoly power in the tied product. The MPAA, and the studios individually, are not in the business of making DVD players. Thus, there is no antitrust violation in this arrangement.

Re:Is this intentional?

[dfalgoust]

The answer to that is obvious: they want to have absolute control over the content of the DVD discs themselves. That does not change the analysis, however. There is no attempt here to monopolize the tied product, i.e., DVD players. Again, the studios do not manufacture players; they manufacture DVD content. The license requirements are not "tying" as that term is used in antitrust law.

Re:Is this intentional?

[dfalgoust]

Tying is not per se illegal, and it certainly isn't illegal under racketeering laws. It may be illegal under the antitrust laws, but only by a firm that is using tying to either attain or solidify monopoly power.

Furthermore, the firms that make DVDs do not, for the most part, make DVD players, so the use of the term "tying" is somewhat inappropriate.

I believe you missed the point

[BIGJIMSLATE]

You missed the whole point of that. The judge wasn't necessarily being an "idiot" by asking those questions.

In court, anything said is on record. Therefore, by phrasing questions to Alter like so, Alter has basically said that it IS legal for someone to make a PERFECT, or VIRTUALLY PERFECT copy of a digital audio recording LEGALLY because of that act. BUT, he will then later argue that the EXACT SAME THINGS, only with a visual recording, can NOT be legally done (according to the DMCA) with DeCSS.

If nothing else, I think the Judge did that very well, since that gives 2600 yet another piece to hurl back towards the MPAA.

Idiot! Schindler's List is NOT out on DVD!

[BIGJIMSLATE]

I can't believe this happened.

First, they talk about making blue pixels (pickles) green in Schindler's List, which we all know is a Black & White movie (except for the girl's red coat).

BUT...I can't believe that nobody has pointed out the fact that Schindler's List hasn't even been released on dvd yet (officially, in region 1, to the best of my knowledge; and if so, its been out of print for a while! Check Amazon (plain-text link):

http://www.amazon.com/exec/obidos/ASIN/B00003CXC K/ o/qid=989549028/sr=8-9/ref=aps_sr_d_4_1/107-834597 9-3919759

"NOT YET RELEASED: The studio is currently not producing this title on DVD, but to be notified when it is available, enter your e-mail address at right. You'll also be voting for this release; we'll let the studio know how many customers are waiting for this title."

Wow...they really struck out on this one, right?

Free speach?

[kalleanka2]

Isn't calling free code and deccs for free speech just bullshit really?

Free speech is in the constitution to permit people to criticise leaders. This is really important in a democracy. If this isn't allowed politicians can more easily manipulate the public so they don't know whom they really vote on or what they stand for.

How have ripping of DVD anything to do with this?

Re:Free speach?

[Tech187]

They're fighting to prevent there from being red 'make a decrypted copy' and 'burn a DVD-R copy' buttons on software DVD players a year from now.

'The other side' is so busy throwing up scarecrow arguments ('free speech', 'fair use') and avoiding the fact that the MPAA is mainly trying to keep the camel's nose out of the tent at this point in time.

just an idea....

[ComaVN]

This may have been asked or said before, but has the MPAA (or whoever devised CSS) patented it (and it's descrambler obviously?) What if they had? In that case DeCSS would be in violation of patent law, and it might be a very different situation.

Of course, they'd have to make the algorithme public, but that doesn't matter, it already is (now)

-------------------------------------

Re:Read EVEN Closer...

[Vintermann]

Yeah, that's what I thought. Your ears won't help you distinguish a copy of a DAT tape from the original, of course. But for all I know there may be other ways.

The judges

[Vintermann]

I must say I am a bit shocked at the judges in this transcript. I'd think they knew more about the case than this. consider this quote:

"Judge: Perfectly true copy.

Alter: That's right.

Judge: As far as most human ears are concerned,
indistinguishable from the original?

Alter: Correct. "

This little exchange reveals that the judge has only a poor grip on what digital storage is.


There were other things in this text that I reacted to, but this one was one of the worst. Things look pretty grim for 2600. You only need to look at the differences. The appealing attorney is interrupted all the time. As soon as Alter gets to speak, he talks on for a full page +, and there is remarks like (laughter) in the transcript. Alas, for all the wrong reasons.

Re:Mod the parent UP!

[dfalgoust]

This was one of the first things I noticed (IAAL), and I dashed a quick email to cryptome to let them know.

I think Umeki is related to Xenu somehow... :-)

Re:pickles?

[dfalgoust]

Blue pickles must have been an early Nazi experiment...

Re:Mod the parent UP!

[dfalgoust]

Hate to reply to my own post, but I just got an email back from cryptome -- they have corrected the transcript. "Umeki" is no more.

Fair use, but only for analog?

[Thurn und Taxis]

I was really hoping Sullivan would make a bigger deal of this point. If we only allow fair use with certain technologies, then what happens when those technologies are (inevitably) replaced? Should photocopiers be illegal because we can take pictures of book pages (or even copy them by hand)? If the only way to make fair use of a DVD is to videotape it, what happens if the MPAA convinces camcorder manufacturers to include "DVD filtering technology"? It seems like a dangerous precedent to hand the reins of fair use over to the equipment manufacturers.

You ARE the Missing Link. Goodbye!

Re:DeCSS has *very* little to do with copying DVDs

[Tech187]

Blank writable DVD media is only avaiable, in a form where the specific zone on the disk that contains the decryption information on it is blank (no media layer present to write to). So a digitally perfect copy of the DVD disk can be made, minus that important spot on the disk. Therefore no COTS DVD player will be able to play the content.

fair use definition

[redcup]

for those of you unfamiliar with this case, fair use is defined by the MPAA as anything you can do with a DVD, but would is a complete waste of time.

note: fair use does not cover anything you would actually want to do with a DVD you paid for.

RC

the second breifing

[the_2nd_coming]

isn't today the date that the lawyers were to have their final breifing filed? when can we read those?

Re:Dolby

[anonymous cupboard]

Another approach, think of the dolby system for sound encoding/decoding. This system is patented by Dolby Labs and uses electronics for encoding/decoding. Anyone can build a Dolby decoder at home and use it privately. If they want to sell it, they pay the license fee.

Dolby used to be pure hardware, now you can use a DSP which blurs the issue. However, everyone seems happy to stick to paying the license fee.

What is the difference between this and and CSS? Well, I can hear non-Dolbyed soundtracks if I don't have Dolby. This is not possible with CSS.

CSS is not about content protection. jcr has it right that it is a restriction on how you access the content, imposing the MPAA's market model and licensing monopolyy on the user.

Re:Why does Sullivan fail to mention the Linux use

[pacman on prozac]

I may be missing something about american law but surely this is the single most important point to this case. The argument against is that it violates laws by allowing copies to be made but in reality its use is to watch dvd's.

If you cannot watch dvd's what the fuck is the point in buying them? Whether its in the briefs or not imo this point should be drummed into the judges heads again and again, this is a tool for watching dvds, whether it was designed to show the inadequacies or the css or not who gives a flying fuck, thats a personal problem for the people that designed it not a legal problem for linux users wanting to view it, whether one possible use is to copy dvd's....so fucking what, any half intelligent person can think of illegal things to do with almost any household object but as they have a legitimate use they are allowed.

Sorry if I'm restating the whole argument but the MPAA are using the crowbar analogy and as someone else said before, crowbars are not illegal. I also think once this case is over we should personally visit our local mpaa reps and shove crowbars up their respective arses just to really rub it in.

Re:Because that is totally irrelevant.

[Dink Meeker]

so cross-platform tools like Wine, VMWare, Virtual PC etc. are all infringing the copyrights of Windows-only software? Should links to them be banned? Maybe we should sue magazines that provide that information, or websites that sell T-shirts supporting them. Or maybe you should lay off of the Valenti crack pipe.

How about beating them with their own stick?

[blang]

What would be really fun, would be submitting material to the court, using some lame encryption. Offer the court some homemade device, for a stiff price, and inform the court that it would be a violation of the '98 copyright act to try to circumvent this copyright protection using any otehr device. After all it _is_ the intellectual property of the author, and the author has the same right to protect her intellectual property as RIAA. Then the judges may get some perspective on "fair use".

11 words for the prosecution

[The Ultimate Badass]

I request to have the defense's remarks stricken from the record! duh.

Why won't the MPAA just roll over and die?

[The Ultimate Badass]

This case has been dragging on since before the LNUX IPO. MPAA must have lost it five times already. Why can't they just tell when their beaten and give up?

I figure their plan must be to make 2600 got hrough all their cash reserves, so they can't continue with the defense, and MPAA wins by default. If the government would get off their asses and institute some reforms that prevent this sort of lawsuit-by-attrition, maybe honest americans like Emmanuel Goldstein would be able to go about their perfectly legal business without being dumped on by mega-corporate cartels.

Hey, weren't there some sort of antitrust laws passed to prevent companies from joining together to control markets like this? Calling it an association doesn't make it any less a horizontal trust, now does it?

whos kidding who??

[order_underlies]

A) DeCSS is only used for accessing to video once it is changed is it still the same movie. Is the new video protected by the same copyright? B) The copy can be made by the os so does this make OS's illegal under DMCA? (Id like to see a battle royal beetween Mr Gates and the MPAA) C) A gun only has malicious intentions and they are legal. What sort world is this when DeCSS is considered more dangerous than a gun? D) I think code is free speech in this case because it expresses to the MPAA that they gave away all their encryption keys in a short portion of black footage in the movie - they should be thanking these guys not suing them. Beauty and logic are intertwined by ease of understanding breaking complex issues to grass roots and making a different piont of view known. 2 wrongs dont make a right but 3 lefts do. Is ther perfection ... it already is. regards