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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.
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.
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
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.
This space for rent. Call 1-800-STEAK4U
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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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.
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.
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........
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.
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
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."
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.
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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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.
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!)
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?)