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DeCSS Injunction Reversed In CA Case
kinesis writes: "For those of you following the California DeCSS case, a court of appeal just ruled in our favor, overturning the injunction imposed by a lower court. The court's opinion is available in DOC and PDF versions.
It's a great read for those who want to really understand the case. The conclusion is nicely summarized with this quote: 'In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.'
" Or you can go straight to the PDF.
The fact that a medium of expression has a functional capacity should not preclude constitutional protection.... Computer source code, thought unintelligible to many is the preferred method of communication among
computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"
This confirms my theory that there are more sensible people in the world than I previously expected. I just loved the part where they upheld the belief that "computer source code" being an expressive means for the exchange of information among geeks. I mean, that just rocks..
Rapid Nirvana
So essentially, nobody ever boasted that they reverse-engineered the thing, or that they clicked on a license... But simply by saying "CSS sucks" and "the DMCA is a stupid law, I should be allowed to post whatever I want", you can find yourself the defendant in a trial for which the plaintiff has minimal evidence against you?
Those nasty kids. We didn't have any real evidence against them, but they were so disrespectful.
you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright,
Agreed. They explicitly state that there are Constitutional issues with Copyright. However, this is a "Trade Secret" suit, brought under UTSA, and the court held that the First Amendment trumps trade secrets, since there is no constitutional basis for trade secrets (unlike Copyright).
Fascism starts when the efficiency of the government becomes more important than the rights of the people.
And I'd be a Libertarian, if they weren't all a bunch of tax-dodging professional whiners.
Berke Breathed
Thanks for the sentiment. We've still got a few more things to fix though. I'm waiting for the day when all the Berne Convention countries have adopted our draconian IP laws, and then the Supreme Court overturns them in the US.
That would be kinda like the town bully organizing a gang, only to have his mom tell him he can't go out on the night they had planned to spray paint the school.
You should worry about this -- yes, it's clearly unconstitutional, and with time and money it would obviously be overturned.
However -- look how long it has taken. Two years, I believe. The problem is that large companies and consortiums of companies can run roughshod over individuals with impunity. Sure, it'll be overturned if someone can scrape together enough money or get enough support to go to a group like the EFF, but it takes *years* to do so. In the meanwhile, their business practices continue unabated.
Will right prevail eventually? Kind of, maybe. But the point is that they shouldn't have the nerve to try to forbid people from playing their own DVDs with any software they choose. You buy the DVD, you should have the right to play it and enjoy it anywhere at any time. You're not infringing on their rights by doing so -- but they're infringing on yours by trying to limit what you can and can't do.
People *should* go ballistic when their rights are trampled on. Thank God this guy was willing to fight.
While you have certain rights on paper as a citizen of the United States, if no one stands up for those rights it's the same as not having them at all. Look at what Ashcroft and his cronies are trying to do... until the Terrorist Act makes its way to the Supreme court, it'll be used to abuse the rights of many people -- I guarantee it. People who are not a threat to the country or our safety, just people who are nuisances to large corporations and/or the present administration. I have no doubt that that law will be overturned eventually -- but probably five to six years from now, after doing amazing damage to people who don't deserve it. Someone will challenge it and prevail, others without the money to go through the process of appeals and whatnot will simply have to take their lumps or worse.
If that's not worth getting upset about, I don't know what is.
Yes, it's a win, but the court made it perfectly clear that it holds no opinion on the REAL stakes in this war.
The real stakes are the loss of the DVDCCA monopoly over permissable player features.
The entire DVD industry, through the DVDCCA, have devised a set of mutual licensing handcuffs that they are all to wear -- DVD player manufacturers may not manufacture DVD players with unencrypted digital outputs. They may not manufacture and sell region-free players. This keeps the ability to make fair use of DVDs out of the hands of consumers.
If the trade secret status of the decryption algorithms is found to be lost, then third parties, not bound by restrictive DVDCCA licenses, may well be free to offer DVD players with such consumer-friendly features as unencrypted digital outputs, no region codes, and the ability to fast-forward over unwanted trailers and FBI "notices", while the entire current DVD player industry will be unable to match those features, due to their contracts with the DVDCCA, without in effect dissolving the entire licensing structure and having to compete in, horrors, an open, unrestricted marketplace.
Those are the real stakes. They have nothing to do with copyright infringement, and everything to do with what may turn out to be a "suicide pact" amongst all DVD hardware manufacturers.
The court offers soothing, reassuring words to the DVDCCA and current player manufacturers:
We express no opinion as to whether permanent injunctive relief may be obtained after a full trial on the complaint, as that issue is not before us.9 We further have no occasion to decide whether damages for Bunner's disclosure would be appropriate in these circumstances. DVDCCA may, of course, bring an action for damages or even injunctive relief against anyone who violates the Act by conduct rather than speech.
"violates the Act by conduct" presumably means to manufacture an unlicensed player, and that's the real reason that the MPAA/DVDCCA is spending millions of dollars suppressing DeCSS.
Computer source code, thought unintelligible to many is the preferred method of communication among computer programmers.
"that's like saying bridges are the preferred method of communication among civil engineers. code is for compilers, text is for people."
Source code *is* text, except in languages like National Instruments' LabView.
Blueprints and engineering drawings, not bridges, are a suitable method of communication between civil engineers. They can be "converted" to bridges by builders reading the blueprints. That does not destroy their value as a medium of communication.
Source code is a way to express an algorithm in a way that it may be *both* understood by humans and converted into executable form.
The court specifically recognized that the corresponding object code would not be a medium of human-human communication, but rather in the nature of a mechanical device.
The quote you made from the decision is in the context of discussions of encryption. Surely, for a complicated encryption algorithm, the clearest, most precise, and most unambiguous expression would be a code-like representation, whether in pseudo-code or a real programming language.
Are you suggesting that bridge designers communicating with bridge builders by text alone would work? Do you think the bridge would at all resemble the true intentions of the designer? Would it even be safe to walk across? I believe we would clearly prefer that communication to take place through accurate drawings.
Likewise, discussions between cryptographers and people implementing encryption systems would almost certainly be most accurate if conducted using code-like constructions. Accurate descriptions of encryption technology are essential to avoid potentially serious errors, such as security flaws. Therefore, communication in source code is far preferable to ordinary text.
OK, I've read thru the PDF of the decision.
IANAL, but it seems to me that it boils down to the appelate court saying (with a lot of other things):
Source Code is Free Speech. DCMA cannot override the right of free speech, especially if it does not involve the use of slander, libel, or "fighting words".
Therefore, you cannot have a trade secret law, especially one from a state, override the constitutional right to free speech. Ever.
This implies that I can thereby describe WINE as free speech, and MSFT can't sue me for trade secrets, since it's an alternate method for responding to inputs and outputs.
This also implies that DCMA is functionally flawed on a constitutional basis.
This lastly implies that the only way to overturn this is to have the US Supreme Court or some higher court overturn this decision.
Good.
Time to start coding!
--- Will in Seattle - What are you doing to fight the War?
As physical items become (nearly) as close to free(gratis) as information can be now, I fear the effects of existing business being guarenteed a profit despite a change in technical ability and need. In that vain the, FCC owning all the airwaves and dolling them out to a few chosen ones under certain conditions is very much like feudalism. If this end justifies the means (legally destroying time shifting while defending corperate profit) We are setting up the legal tools to legally enforce true feudalism in meatspace.
The legal decisions of the next 10 years can make the next 60 heaven or hell. Near godlike control over the structures that make up all physical matter and physical scarcity needs to distributed among all that do not abuse it. Damn Hollywood for not having vision beyond quarterly reports, and damn us for not fighting them harder.
Respect for creativity and self reliance over profit is esential for invention, self respect and true inovation. Liberty or death.
Novel theory: Modern Man evolved from psychopath
Dur-hey.
This is because those of us who actually understand these machines have realized their economic implications, and that they make copyrights obsolete.
Computers are designed to copy things. Indeed, computers as we understand them today would be useless if they lacked the ability to copy data and move it around. What the Feudal Intellectual Property Lords are trying to do is tell you, down to the smallest detail, what you can and can't make copies of, and what you can and can't do with those copies.
Consider the program Cthugha, which is an audio visualization program. It takes the digital representation of the music on CD and turns it into a light and color show. The IP Lords assert that, unless you have been granted explicit permission by them to do something with "their" music, you should be held criminally accountable. They have never granted explicit permission for you to run "their" music through a color organ. Hence, copyright violation.
Further, since the output of Cthugha is directly related to the musical input, the output could be construed as a derivative work (since there is no new "creative material", only a purely mechanical translation from audio space to visual space). Absent a license, derivative works are expressly prohibited by copyright law. Hence, using Cthugha is a copyright violation; and Cthugha could be held as a device whose sole purpose is to violate copyrights, and would be banned. (And after all, why should Cthugha's authors profit even reputationally from a color organ that would be useless without "their" music, when the major labels should be able to make money by selling you one?)
This is how adherents to current IP law think. This is not reasonable. This is not forward-thinking. This is not socially redeeming in any way. This is stupid. It is reductio ad absurdum, except that it is being taken seriously. On the contrary, it merits nothing but ridicule.
That's why you're seeing so little regard for, "traditional IP laws and rights." It's because they don't merit respect. The era of ubiquitous and zero-cost manufacturing, as heralded by the computer, makes them irrelevant and obsolete.
Please note extremely carefully: I am not saying artisans and inventors should not be justly compensated for their creative works. But the "traditional" laws we have in place for doing this no longer have any realistic bearing on the real world, since the machines themselves defy the fundamental assumptions made by the law. The whole system needs to be scrapped and re-designed anew.
Schwab
Editor, A1-AAA AmeriCaptions