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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.
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.
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.
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.
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!
Except for the pickle scenes. And those are only on the director's cut.
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.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
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
http://www.mrbrklyn.com/amsterdam.html http://www.brooklyn-living.com
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.
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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
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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.
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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:
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.
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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....
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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.
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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 ????
- sigs are for wimps.
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 ???
- sigs are for wimps.
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!
I AM, therefore I THINK!
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.
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!
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to 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.
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.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I really wish he hadn't picked a black 'n' white movie for that example.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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?
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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........
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.
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.
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.
No. A laserdisc is analog just like an LP is.
If J.K.R wrote Windows: Puteulanus fenestra mortalis!
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.
I don't want knowledge. I want certainty. - Law, David Bowie
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.
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.
Expanding a vast wasteland since 1996.
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.
War is necrophilia.
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!
Reason is the Path to God - Anon
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.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
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.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
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.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
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.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
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
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
The only title of honor that a tyrant can grant is "Enemy of the State."
In a manner of speaking. Listen.
I don't need large brains to have a good time.
They did say that. Read the briefs.
I don't need large brains to have a good time.
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.
I don't need large brains to have a good time.
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
Want Root?
What sort of crack have you been smoking? 2600 LOST the original case. This is 2600's appeal, not the MPAA's!
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
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?
My car gets 40 rods to the hogshead, and that's the way I likes it!
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 :)\ =\=\
=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=\=
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.
Woot w00t w007.
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.
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.
"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.
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.
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Am I the only Slashdotter who is sick and tired of losing 9000 karma points every time they moderate?
I pledge allegiance to the flag...
of the Corporate States of America...
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"
--You will rephrase your request for me to go to hell. Goto statements are not acceptable programming constructs
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.
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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.
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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.
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.
You see? You see? Your stupid minds! Stupid! Stupid!
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!)
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.
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.
- Dan I.
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
A government is a body of people notably ungoverned - AC
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.
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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.
"Horse and buggy vs. automobiles" was a silly analogy. Something like "printed books vs. illustrated manuscripts" would have been much more appropriate.
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.
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?
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KMSMA (WWBD?)
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.
xkcd is not in the sudoers file. This incident will be reported.
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.
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
RC
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?
Denial isn't just a river in Italy