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.

Comments

Re:Why so glum...

[Skyshadow]

I agree; unlike what some of the other posters think, I seriously doubt that the judicial system in general will be willing to endorse an erosion of the ground they've managed to stake out for themselves a la judicial review.

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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We Have a Responsibility

[danmil]

As programmers, we are in the position to actually understand the issues raised by the DMCA and by this suit. We can see how the various industries involved have extended the rights of a copyright holder in such a way as to destroy fundamental free speech rights protected by the Constitution. This is not simply a matter of copyright. It is a matter of free speech. Society as a whole stands to lose, and they simply don't understand.

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

Very Important Segment

[Platinum Dragon]

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.

Eldred v. Reno

[yerricde]

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.

MPAA broke the law!

[www.sorehands.com]

By using CSS they are forcing me to watch their commercials, trailers, from taking a few of my DVDs when I go on vacation.

First Amendment arguments and Professor Netanel

[EricEldred]

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:

As copyright law has metamorphisized over recent decades, copyright owner prerogatives have become increasingly bloated, raising serious questions about their need and fit for copyright's incentive-for-original-expression rationale and imposing an increasingly onerous burden on speech. And in parallel, even if free speech law might have presented little ground for subjecting copyright to First Amendment scrutiny in the past, the evolving precepts and analytic framework of First Amendment doctrine now fully support, if not demand, such scrutiny.

I argue that, in line with prevailing First Amendment doctrine, copyright law constitutes content-neutral speech regulation and should be subject to intermediate scrutiny. Copyright law, however, falls within an emerging subcategory of content-neutral regulation. That subcategory consists of government regulation that distributes speech entitlements among prospective speakers, thus giving rise to a suspicion of successful rent-seeking by the highly organized interests to whom the entitlements are granted. In such instances what appears to be courts' implicit suspicion of improper government motive has sometimes led, and ought to lead, to a more rigorous, searching application of intermediate scrutiny than is often otherwise the case.

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.

Do terrorist groups have magazines?

[cgenman]

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

Non-speech ??

[jay42]

From the article:

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

It doesn't make sense...

[President of The US]

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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