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2600 Responds to Appellate Court
BlueTurnip writes: "The defendents in the MPAA vs 2600 case regarding the dissemination of the DeCSS program have filed their response to the court's questions. The brief does an excellent job of answering the issues raised. I won't repeat them here as one can read them directly." Background: hearing transcript. Update: 05/30 7:19 PM by michael : The brief filed by the MPAA, giving their rather different responses to the same questions, is also available.
The court's primary source of power is the ability to force congress to conform to their interpretation of the constitution. Allowing this power to take a hit just because one of the parties is big business doesn't seem very consistant (otherwise, Standard Oil would still be the only place to buy gas).
Besides, sooner or later this will get to a court that isn't comprised entirely or Reagan appointees (who, let's face it, tend to be whores to big business).
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Every year during my review, I just pray the words "slashdot.org" aren't mentioned.
I thought about this a second, follow me.
Does a machine run C code? Does it run Perl Code?
No, we go to great lengths to translate that language into language the machine reads and understands. Those get 'run'. Programs get written and read and understood by humans. It is their main purpose.
(Further down the path... on a related note and also mentioned in the argument)
Recipies are made for baking cakes? No, ingredients are. Recipies are made for humans to understand and use. Did the recipe tell my arm to add a cup of sugar? No my brain did.
(Back again, and on the mighty "might")
I suppose one might run the program by hand. They might automate a computer to do so. Their argument (as I gather) is that automation or personal execution does not add a non-speach element to expressing the instructions (or in this case expressing a reference to them). Their reasoning did continue along those lines. Whether they argue it successfuly or not is another thing.
~^~~^~^^~~^
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In Australia, the courts initially ruled in just this manner - that it didn't fit under the original definition of what was copyrightable. For a little while people were copying software left, right, and centre, until political lobbying from people like Microsoft saw the law in Australia changed to explicitly include computer software under the definition of what is copyrightable.
Go you big red fire engine!
Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)
RMS paints a grim picture in The Right to Read. How sure can we be that he's wrong?
We have a responsibility. We must educate others. We must take some of the profits we make in a market which values our skills and contribute to the Electronic Frontier Foundation.
-Dan
I have written a truly remarkable operating system which this sig is too small to contain.
This is arguable, I think. After all, the decoding key is, in essence, a "password".
Imagine someone in the prohibition era ( a strangely apropos setting for this analogy) sending a message to a group of like-minded individuals that says "To get into the speakeasy, go to the corner of 5th and Main street, walk down the stairs, and tell the guy at the door 'Joe sent me.'".
"Joe sent me" is the "specific key" to get into that speakeasy. Does that make the "Joe sent me" part of the message a non-speech element?
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Hacker Public Radio is our Friend
Oh, yes, and before somebody points out that speakeasies were illegal during prohibition, imagine that 'Joe sent me' is the password to get into a number of establishments, some legal and some not. There, now the analogy fits a little better. There are "infringing" uses (getting into a speakeasy) and "non-infringing" uses (getting into the exclusive chess-playing club run by the Mafia boss who happens to also be a chess fiend...), just as the decryption key could, hypothetically, be used to simply watch a legally-purchased DVD or, also hypothetically, to make a decrypted 6GB file that someone wants to clog their broadband lines with nonstop for a day or two just so their buddy on the other side of town can download an illegal copy of it...
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Hacker Public Radio is our Friend
I whole heartedly agree that 2600's argument style reflects favorably on their case. It is a much more honest and legitimate technique. The BS that the other two lawyers (read the transcript of the trial) tried to pull is one of the reasons that I have overall unfavorable feelings towards the whole legal proffesion.
As for stronger chances, it worries me that the judges even considered 2600 to be any different from the New York Times. In the transcript, they point out that 2600 is arguing as if everybody had been injoined from distributing DeCSS, rather than just them. At another time, one of the judges says something along the lines of "the injunction is very specific: YOU can't distribute DeCSS," and then hints that as such the 1st Amendment is not applicable.
Indeed, it scares me that they would consider the injunction and the lower court's interpretation of the DMCA to be constitutionally valid for the simple reason that only one person's speech is being controlled. A quote I've seen that well expresses my feelings on this is
That could have a chilling effect on the information economy, but it could also have some positive benefits:
- Much of the Art is published already, prior art abounds for a lot of the field.
- Longer cycle times (due to the broader ownership rights of patents) mean more time for debugging and, potentially, application of stronger liabilty standards. Liability for an expression is much more limited than liability for a defective device.
- Therefore, better code and better remedies -- look out Bill :-)
Yeah, it's utopian, but it's fun.
DeCSS is a device (configured as a program, although it could as easily have been configured as a physical machine, i.e., a "black box") that accomplishes a mechanical task, namely descrambling and decrypting an encrypted, scrambled DVD and copying its content to a hard drive. It is no more "speech" than a key to a library or museum (or a crowbar that could force open their doors) is "speech."
The Declaration of Independence is a device (configured as prose, although it could as easily have been configured as a physical machine i.e., a "black box") that accomplishes a mechanical task, namely telling off King George.
Of course DeCSS can be implemented as a physical device! So can all speech! If that's the only thing I ever learned from my algorithms class, then so be it! The Declaration of Independence is a "Parchment Crowbar" for forcing open restrictive government, asshole!
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There are no trails. There are no trees out here.
The following portion of the 2600 filing not only stabs the MPAA/Government's rhetoric directly in the heart, it describes the purpose of DeCSS; to access the content on a DVD and stream it off the disk:
Moreover, even when the "functionality" of DeCSS is considered, it is important to remember the limited function of this particular program. Despite the Government's inflammatory rhetoric, DeCSS is not intrinsically harmful. No one can use DeCSS to "shut off navigational systems on airplanes or shut down smoke detectors in public buildings." By itself, DeCSS does not even perform any infringing activity. A person can use DeCSS to do only one thing -- access the content on a DVD. From that point a person must choose what to do with the decrypted movie. She could play it on a Linux computer, copy a snippet for a book report, make a personal back-up copy, or feed it into a database to be used for scholarly research, all permissible, fair uses of the DVD content. See e.g. Universal, 111 F.Supp.2d at 322.
That pretty much covers everything we've been saying here and elsewhere about the nature of DeCSS.
I also suspect, as many otheres here do, that 2600 will lose, simply because of its "hacker reputation" instead of due to any substantive factors. And that's rather sad. 2600, I believe, was morally correct in this case.
Too bad my opinion won't be the one that decides 2600's fate.
Someday, you're going to die. Get over it.
The MPAA is going about this in a fundamentally unsound manner. They consistently argue by analogy, comparing DeCSS to some bad physical thing or disseminating it to some bad physical act, and often arguing that said thing or act would be illegal.
2600's team argues purely based on the actual situation - comparing dissemination to dissemination, decryption to decryption.
Based on this, I think that 2600's chances are much stronger than most of the posters so far seem to think.
Become a FSF associate member before the low #s are used
In Australia, the ACCC (the equivalent of the FTC in the USA) has taken issue with the region coding as an unfair restriction of trade. My guess is that it is highly likely they will win (going by the fact they are fairly conservative and rarely take a case to court that they stand a chance of losing) and hence result in:
i) Region free players being available in Australia, and
ii) Making it illegal for a movie studio to restrict any non-region 4 DVD from being played in Australia if it can be legally imported.
or, the removal of DVDs from the Australian market (not likely).
Of course, this pretty much smashes the whole idea of region coding which requires every country in the world to participate or it won't work for anyone.
In fact, it is actually the region coding that is the primary weapon against the copyright infringement as it prevents the bitwise copies from being made and exported from SE Asia (which has a region all to itself).
Fear: When you see B8 00 4C CD 21 and know what it means
No. ... It is no more "speech" than a key to a library or museum (or a crowbar that could force open their doors) is "speech."
Perhaps this has been covered before, but I sincerely believe they're wrong on this point, and it may be a critical point.
Let me break the crowbar up into three different ideas:
- 1. A complete description of what a crowbar or key or lockpick is, and how to use it.
MPPA is saying that DeCSS is the same as #2. And that, while #2 hasn't usually been seen as illegal, the ease with which it can be turned into #3 (because it's digital) means it should be illegal.2. An actual crowbar/key/lockpick that has been constructed from #1.
3. The act of applying a crowbar to a door, or a lockpick to another's locked door.
This is true.
The problem is... not only is DeCSS analogous to #2, but it's also analogous to #1 since the implementation is necessary to be able to describe it, and to talk about it in a defense sort of way. As such, preventing #2 would prevent any discourse about it because #1 isn't allowed unless #2 is.
This is what the court is trying to get at. Is DeCSS #1 and #2? Just #2? Just #1? Neither? If the final answer is "both", then the injunction can't remain.
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..is the fact that DeCSS has *no* effect on anyone's ability to copy a DVD. I can do a bitwise copy of a DVD, *without* cracking the CSS encoding, and still play it back on any DVD player. Decryption is completely orthogonal to copying of DVD content.
The REAL issue, is whether the MPAA has a right to enforce the region coding buggery they've insisted that DVD players implement. I say NO.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
"Our guy" Martin Garbus is the main lawyer behind the initially-successful efforts of Margaret Mitchell's estate to suppress publication of the forthcoming novel by Alice Randall, The Wind Done Gone! (The New York Times had a story on this just four days ago.) Garbus's side is trying to suppress Randall's soon-to-be-published parody of Gone with the Wind, as told from the perspective of a black slave on Tara. It's hard to imagine a more anti-First-Amendment stance to take. So what's the deal? Is it just that he's a lawyer, or does he have a principled view of the world that can include both of his positions in these two cases?
Sorry if someone's already pointed this out on Slashdot. I haven't seen it.
Anything worth doing is worth doing badly -- G.K. Chesterton
In which to my reading sais that they claim it CAN'T be used for streaming (ie to play a DVD to the screen) - of course they are full of it and their brief misrepresents reality ....
the opposite is also true: "Regardless of what you think about the First Amendment, the concept of Fair Use, or any other evil principle, the simple fact is that 2600 upheld the law by posting and linking to DeCSS. Granted, that law might be a bit democratic, and it may have been passed due to far-reaching vision by our Forefathers, but it's a law regardless, and 2600 proudly showcased that law. What 2600 did was noble, and they now must face the consequences of their actions. Don't like the Constitution? Fine. Post an article criticizing it's validity, write a letter to your representative, and let everyone you know what's happening so that they too will know the truth. That is the responsible solution, not blatantly respecting everything the RIAA and DMCA represents. You can't fight the system with these guerilla tactics and corporate mentality, and expect to be immune to the consequences. The Constitution is WRONG, but let's take our fights to the halls of legislation, not the thoroughfares of the Internet. Justice will prevail."
Sometimes the only way to get rid of bad law is to FLOUT it
Sometimes you can flout it a little at a time to take advantage of the "slippery slope" phenomenon, by pushing the limits of fair use and creating works that are barely legal (but not in the kid porn sense).
Remember YOU CANNOT DISPUTE A LAW UNTIL YOU ARE CHARGERD WITH VIOLATING IT. One cannot simply say, "I think the DMCA sucks. I'm going to sue the Fed to repeal it." No court will even listen to you.
Except that's exactly what the Eldred v. Reno case is about, suing Attorney General John Ashcroft (no relation to Richard Ashcroft of what was once the Verve, who the Perpetual Copyright Act that Congress passed during Zippergate to escape media attention. Think of it as a double "Wag the Dog": Kosovo was a cover for Lewinsky, which in turn was a cover for the Sonny Bono Act and the DMCA.
Will I retire or break 10K?
Fight Spammers!
An interesting paper referred to in the EFF 2600 brief is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =267848
entitled "Locating Copyright Within the First Amendment Skein" by U Texas law professor Neil Netanel. A few excerpts from that abstract:
The big media publishers claim ownership of the means of production for all "intellectual property" and they have bought these new copyright laws from Congress in an attempt to maintain control over all use of "their" products in the new digital age of the Internet.
These media giants have argued (so far successfully) that the First Amendment has nothing to do with copyright law because of the distinction between idea and expression and between expression and action. The courts in Eldred v. Reno (now Eldred v. Ashcroft) against the copyright term expression agreed with this argument (wrongly, I believe).
If courts continue to fail to wake up to the changed circumstances that Professor Netanel notes, then the First Amendment will not protect us when we publish anything on the Internet. First it will be the "hackers," then the rest of us who will be pushed off by these "rent-seeking" monopolists. Look, libertarians, it has now become apparent that it is not government that is taking away our First Amendment rights, it is courts following bad legislation that only favors big publishers.
Professor Netanel is a real conservative who has long resisted the arguments of his more liberal colleagues that Free Software deserves some protection against the media giants using copyright law. We should be glad he is now on our side. The 2600 arguments are strong and deserve to win.
I doubt 2600 will lose the case.
They have challenged the linking aspect. The law applied by the lower court was incorrect. If the higher court finds this to be the so there will be no case to answer. In fact the lower court will probably be advised of it's incorrect position.
The higher court is asking the defence lawyers to justify their clients actions. The fact they asked for justification means they are not closed to the idea that a lower court made a mistake.
Unlike a lot of posts I'm fairly happy about the tone and intelligence of the courts questions. They are seeking to establish under what precedent the prosecution has to show guilt.
Remember the court will judge cases not on good/bad, wrong/right it will usually follow precedent and the law.
That 2600 is going to lose this. I feel that the stigma of being a "hacker" is not going to be overcome by this breif.
I feel that perhaps the court will stand in partial favor but still judge against them. The larger money will win this simply because they have demonised 2600 into hackers that steal credit cards and kill people via their keyboards from far away.
The funny thing is that I would trust 2600 with my credit card before I would trust the MPAA. Infact I did when I subscribed.
The Lottery:
"Not my manner of thinking but the manner of thinking of others has been the source of my unhappiness." - M
Do terrorist groups have magazines? It's interesting how the MPAA uses language referring to 2600, and specifically Corley, as a terrorist group hell-bent upon illegal activities, and yet Corley's lawyers keep representing himself as a magazine. The MPAA refer to Corley's "abusive misconduct," "electronic civil disobedience," and his "purposeful and intentional linking scheme." But more than that, they go out of their way repeatedly to try and "prove" that 2600 is not (does not run) a magazine, which they don't even give the legitimacy of referring to by name. This is obviously because removing a magazine's ability to publish an article, however illegal that article would be, pushes a lot of first-amendment buttons and definitely requires the highest scrutany clause.
However, can one really redefine a magazine as a mere solidification of the authors ill will if one does not agree with the content, or that content is socially unacceptable? If Bin Laden published an informative piece on how to make TNT (which has many legal uses), would he be protected under the first Amendment? Is the Anarchist's Handbook protected?
Do we really want to venture into the realm where socially unacceptable knowledge is deemed through inference to be not knowledge?
Aside - It's interesting how the MPAA keeps referring to DeCSS as a way of opening a museum with a crowbar. If I bought the museum, can't I open it any way I want? Furthermore, aren't crowbars legal?
-Cgenman
The ______ Agenda
There's a higher law than the DMCA. It's called the First Amendment. 2600 may violate the DMCA by hyperlinking, but it doesn't matter because those sections of the DMCA are invalid, and there is no need to heed them.
2. Does DeCSS have both speech and non-speech elements?
No. DeCSS itself has no non-speech elements. It is a set of instructions written in a specific professional language that expresses ideas to those who can read that language. Computer programmers and scientists communicate using programming languages because these languages are an unambiguous mode of expression.
Translation: an algorithm is a form of speech.
But AFAIK, DeCSS (as many programs) has 2 parts: the algorithm and the parameters (the decoding key). Are the parameters a form of speech ? I wouldn't think so.
Just like for pay-tv descramblers (eg. Nagra based), you can distribute the program that does the decoding, but you are not supposed to distribute the specific keys for the channels you want to see (Premiere, Canal+) ?
Just my $0.02
The DMCA is Unconstitutional and itself illegal and UnAmerican. Posting the DeCSS code is an act of Civil Disobediance against this very bad law. Civil Disobedience is an American tradition dating back to the Boston Tea Party, I doubt you would argue the Founding Fathers were wrong nor do I suspect you think the Civil Rights movement of the 60's was wrong either. Some times we have to take the fight to the streets and alleys otherwise things don't change and this is one of those times.
Fascism should more properly be called corporatism, since it is the merger of state and corporate power - Benito Mussoli
The MPAA argues that DeCSS is not speech in any way. They are saying that computer programs are "black boxes".
If that is the case, then how could you have copyright on software? Doesn't the fact that software is copyright-able indicate that it is a form of expression, like written/spoken words, recordings, music, graphic art, or even films.
How can the courts in one instance rule that software has the protection afforded to other forms of creative expression when it comes to copyright (intended to be limited in scope), but then rule that it does not have those protections when it comes to protecting speech (intended to be a broad, unassailable right)?
Short answer: MONEY
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Stay in school, kids! Peace out, Dubya