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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.
I just could never worry about this a lot. It was so obvious that it was unconstitutional that it became just a matter of time before it went away.
No, I'm not a lawyer, yes, you can flame me about not caring enough.
I'm just a practical guy who saw the right people going balistic over this.
Let me know when the smoke finally clears.
Finally a small amount of sanity in this insane world. The DMCA and the legal clout that it gives big business may have another small crack now. But it seems everytime the ball gets rolling a little something stops it in its track. Just the idea of them trying to limit how I can watch a DVD or media that I legally obtained burns me up. I have just about had enough of the RIAA and MPAA and other big business shoving people around. I from this point on am not going to "buy" another cd or watch another movie that I don't get for free on the internet. But wait... don't jump to hasty conclusions about me or anyone else that is finally thinking this way. A common misconception in the world these days is that breaking the law is always wrong. WRONG. Many many times the morally correct thing to do is at odds with the "law". If the proper forum were available where appreciative listeners could pool money to send DIRECTLY to the artists that they enjoy listening to, I think many people would line up give their fair share. Its just that these strong arm tactics have me seeing red. NO ONE should be able to dictate how I listen to music or watch TV. Its a sad state of affairs when things have gotten so bad that I even feel animosity towards the cable company for upgrading my cable from analog to digital. Now I am forced to decide between one single show to watch or tape unless I pay more money for another decoder. It would not have been to this point had all of the other things not been going on in this industry. I will resist HDTV until the bitter end. What I watch is my own business... if I want to fast forward past commercials on a show I taped, so be it. I'm just plain tired of being pushed around by these people, and until there is a better way, I simply will not support it/them any longer, and I argue that this does not make me a bad person. It simply means that I am choosing the lesser of two evils. It would take a few big name artists to buck the system and back their listeners and drop out of contracts with RIAA and allow listeners to pay them directly but it has to start somewhere. The bands themselves are the logical starting point. Lawsuits will fly. People will lose money but in the long run we will all come out better than we were before if this were to happen.
Digital is, by definition, imperfect. Analog is the way to go.
[C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an espressive means for the exchagne of information and ideas about computer programming, we hold that it it protected by the first amendment. (junger v. Daley (6th Cir. 2000)))
This is too cool. As another posted said earlier, pinch me. I hope andrew bunner goes after the DVDCCA in an Anti-SLAPP (abuse of process) lawsuit if he comes out of this unscathed.
Chris DiBona
Co-Editor, Open Sources
Open Source Program Manager, Google, Inc.
You know, that old constitution thing you have is pretty cool. I wish we had one.
"...The fact that a medium of expression has a functional capacity should not preclude constitutional protection... [C]omputer source code, though 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 of computer programming, we hold that it is protected by the First Amendment..."
Junger v. Daley (6th Cir. 2000) 209 F. 3d 481, 484-485
Bush Lies Watch
"Like the CSS decryption software, DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSS encrypted DVDs. Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about decryption of DVDs without CSS. If the source code were "compiled" to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas. (See generally Junger v. Daley, supra, 209 F.3d at pp. 482483.) That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus, we conclude that the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterized as a prohibition of "pure" speech. "
Conclusion:
Code == Free Speech
Compiled Code != Free Speech
So what else is new? Other than this fact is now recognized by the court?
We do not live in the 21st century. We live in the 20 second century.
"From of old, there are not lacking things that have attained Oneness." - Lao Tzu
We probably haven't heard the last of this case yet. Poring over the ruling, I have to ask some questions that didn't seem to get raised.
:)
Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA? Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?
Anyone else notice the slashdot.org plug right there in the ruling? That is some awesome free advertising.
By the way, we should note that this case does not appear to have had any impact on the DMCA, but on a CA trade secret law. So we are not out of the woods yet with the federal law.
I do not have a signature
"If the source code were "compiled" to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas. (See generally Junger v. Daley, supra, 209 F.3d at pp. 482-483.) That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus, we conclude that the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterized as a prohibition of "pure" speech."
Oh really, didn't realize slashdot went to court -- oh wait -- they made it into page 4 of the ruling!
Of interest is the explanation as to why source code is a valid means of communication and should be given first ammendment protection -- it's simply the most efficient means for programmers to communicate ideas about encryption. Even a much simpler concept, say a regular expression would take much longer to say in words than it would take to just write the damn regexp.
One thing that really annoyed me was DVDCSS's argument that there wasn't any evidence indicating that Bunner would suffer serious consequences if he'd have to stop his disclosure of DeCSS code vs what would happen if it were freely copied everywhere -- irreperable damage to DVDCSS. First, the damage has been done, although I suppose that there cuold be new dvd players coming out with that Xing master key without having paid licensing fees to DVDCSS. Second, and most importantly, being denied the right to free speech is some pretty darn serious stuff to have to live with. You can't put a dollar figure on that, and you shouldn't have to in order to justify the importance of your rights to some corporation.
I'm glad the judge ruled in "our favor".
Now we can all say goodbye to the pending DeCss cases and litigation.
Well, that's a nice thought... Here is one part that intrigued me (under "Facts"):
CSS is primarily composed of algorithms and 400 "master keys." Every CSS encrypted DVD contains all 400 master keys, one of which is
the trade secret at issue in this case.
I thought that the 400 keys were used to encrypt the movie decryption key, and that the player in question would use its "master key" to decrypt the session key from those 400 on the disk.
In other words, I believe that the "Facts" are wrong. The master keys are NOT on the DVD, just the session key(s) encrypted by the master keys.
If a court ruling starts out with incorrect "Facts", how strong and binding can it be?
A dingo ate my sig...
I assume that the ruling, if the Supreme Court doesn't hear it, will stand, but that another circuit court may interpret differently, in which case it will eventually go to the Supreme Court. Looks like it's time to donate to the EFF, so that they will have the funds to argue the case at the next level.
From Page 13:
"The "fair use" exception permits copying and use
of a copyrighted work "for purposes such as criticism, comment, news reporting,
teaching . . . , scholarship, or research" under certain circumstances. (17 U.S.C., 107.)
It "offers a means of balancing the exclusive rights of a copyright holder with the
public's interest in dissemination of information affecting areas of universal concern,
such as art, science and industry. Put more graphically, the doctrine distinguishes
between 'a true scholar and a chiseler who infringes a work for personal profit.' "
(Wainwright Sec. v. Wall Street Transcript Corp. (1977) 558 F.2d 91, 94.)
. . . the statutory prohibition on disclosures of trade secrets is of infinite
duration rather than "for limited Times." While the limited period of copyright protection
authorized by the United States Constitution ensures that copyrighted material will
eventually pass into the public domain, thereby serving the public interest by increasing
its availability to the general public, the UTSA bars disclosure of a trade secret for a
potentially infinite period of time, thereby ensuring that the trade secret will never be
disclosed to the general public."
I would think that you can use this citation to argue that copyrights, while supposed to be limited in scope, are now becoming de facto limitless, and thus are not 'for limited times'.
Does anyone outh there know of any set top DVD players out there that use DeCSS instead of licensing CSS from the DVDCCA? I'm thinking of buying my mother a DVD player for Christmas and I'd perfer not to give the DVDCCA any more money then is nescissary.
The order granting a preliminary injunction is reversed. Defendant Andrew Bunner shall recover his appellate costs.
Any lawyers out there? I thought that American courts don't usually award costs. Does this mean that the appellate court was ticked off or is this just normal boiler plate?
Don Dugger
"Censeo Toto nos in Kansa esse decisse." - D. Gale
it seems that they are actually using Trade Secret law to suppress DECSS, not the DMCA...
Not just Trade Secret Law, but California's Trade Secret Law, which is quite different from that of other states.
I think you're correct that the appeals court did not directly rule on the use of the DCMA to suppress free speech, but they implied that even the DCMA must bow to the constitution, since it is not a constitutional amendment in its own right. Free speech wins against all but other constitutional laws, from what I can gather of the decision.
--- Will in Seattle - What are you doing to fight the War?
For the first time in a couple years I'm experiencing a glimmer of hope that the checks and balances in our system of governance may actually wind up protecting my rights -- as a programmer, computer & software user, and free citizen of the US -- from the despicable encroachment currently being realized at the hand of law enforcement agencies and especially private corporate interests.
Of course, after Bush v. Gore, y'all forgive me if my cynicism WRT to the Supreme Court keeps this glimmer of hope faint indeed.
I'll try, but you could take a whole semester of contract law and still have some gaping wholes.
In legal jurisprudence, you can think of speech and conduct as a continuum. On the left is pure speech, "That dog is ugly." On the right is pure action-- You shoot the dog. In the middle there are actions that are between the two. For instance, take three actions considered to be speech - Burning a cross, burning a flag, wearing a T-shirt that says "Fuck the draft". In all cases you are performing an action, but the action involves expression, and the expression is protected. Take example 1. You could be sued for trespass when placing a burning cross on the yard; You could be sued for destruction of property, if it causes damage, but you could not be prosecuted under a hate crime because your expression was protected speech.
On the other end of the spectrum. If you saw an angry mob and you told them to go lynch someone, while that's style a spoken word, its more tantamount to action. You no your words will cause them to perpetrate the action.
In this case, its unclear about what that actually means; however, here is my bet. You can't sue someone for posting the DeCss algorithm, but you can sue them for using the DeCss software.
While I agree with you, I feel the need to at least put in the plug for capitalism.. When you acquire an MBA, econ degree, marketing degree, or any general business degree you are a highly specialized human being. Your focus is to squeeze profit out of a market better than your competitor. If you can't, then you are replaced by the board. If the board can't dictate policy effectively, then the share-holders replace the board. If the share-holders don't choose an appropriate board, then profits linger, P/E ratios drop, and investment firms lower their rating. If the rating drops, the share-price is sure to drop. Thus the investment firms sell stock, and the individual share-owners are dramatically encouraged to replace the board. Furhter, if investment firms that don't react harshly to harsh financial environments won't be invested in by individuals. Assuming Investment firms are mostly collections of lay-people's "retirement" money (401Ks, pensions, individual stocks, etc), then the entire drive to perfect the art of squeezing every last penny is largely propelled by sweet ole mom and pop. Isn't it ironic?
The main advantage to this system is economic efficiency (which has little to do with money). We distribute scarce resources to that which desires it most (or at least is willing to trade the most of another scarce resource). There's very little waste in capitalistic societies. The main sad part is that since you can acquire tradable goods (fiat money) more easily when you already have tradable goods (equity), then the value of a fixed quantity of money to a wealthy person is orders of magnitude less than that of a poor person.. Thus when bidding for a scarce resource, the most needy usually can not compete. But I've never seen a system that avoids this problem without just trading it for other just-as-serious problems.
Given the above, the US constitution is not in the most efficient form (nor could it be without adapting over time). Usually it any modifications to law and or constitutional rights lag behind the currently desired equilibrium (which is usually a compromise which doesn't fully meet anyone's desires, as it should be). But the mechanisms for enforcing these changes are by far not in line with economic principles. Democracy is at least closer than communism to an market-sensative adaptable system. Like the board, we remove the administration when it falls out of favor. But unlike a company, there is no clear direction (as with profit), so it's impossible to gaguge someone's resume' and determine if they stand a chance at better administration.
The general point, however is that we can't blame the MPAA or RIAA for their direction. They are the product of evolution. Anything they'd be replaced with would come to similar decisions. We can only competed with them for legislative efficacy. But like the wealthy and poor competing for a scarse resource, the money favors the large organization in enacting new laws.
The only out I can consider is to define a set of measurements by which a congresman's value can be weighed. How much like "measuring the worth of poety" [dead poet society] this sounds, but this is, indeed in the name of reaching a political equilibrium.
-Michael
-Michael
Yeah, ha ha, but seriously, what if it some economic drive could push the price of our representives higher than is worth paying. Is it worth paying 90,000,000,000 USD for a congressional amendment that will pay that back in a thousand years? Or more simply, why buy a judge for more than the dispute is worth?
Is it possible though to push those costs up in a reliable way, assuming that the human desire for justice and fair play is not always as strong as the human desire for personal enrichment (an assumption I don't think anyone around here is going to question.) First there's simple supply and demand: a judge's ruling (which I standardize on as the simple case) is a one time service. Very limited supply. Only the Supreme Court has a monopoly on rulings, and they can take away anything another judge gives you, which complicates the model a bit. Also note that there is an oportunity cost: a judge can only sell a case once, and the appearance of being bought might affect their ability to sell further rulings.
But what we want is for judges to rule as if the ruling hadn't been sold. Perhaps judges would be willing to sell their privacy, so that we can be sure that none of their personal gain is dishonest, but they make a tidy profit on the side? Hrm.
IP is just rude.
Is there any torture so subl
The best method I saw for paying the artists directly was a band I listen to allowing people to pre-order their next CD (which they hadn't even started writing/recording) for double-price ($30 US), with only the promise of having it autographed. A year later, I've got my shiny new CD, plus a free t-shirt, and $5 off other band-related merch.
Oh Susanna did something much like that for her last CD, Sleepy Little Sailor. The pre-ordered copies were just at the regular price, and didn't get autographed, but the people who bought them did get their names listed in the credits. (See if you can find me.) I got mine autographed as well when the next folk festival came through town. Unfortunately, I think it only worked well in this case because her style of music is relatively cheap to record, and she already had a reasonably loyal fan following from previous releases. A band working on its first album, and/or in a costlier style, might have a hard time with this kind of business model.
Those of us who care about this kind of thing have a duty not only to not buy RIAA CDs, but also to buy non-RIAA CDs like this one, support live music, and so on. If we're going to claim that artists can survive in a world that includes peer-to-peer, and that cheaters like the RIAA will never prosper, then we ought to do what we can to make sure those claims stay true.
It will certainly not benefit the closed-source community, which is bad. But it will help open-source projects.
Also, it appears to me that the ruling is quite limited in its focus on speech. It only protects source code, and it only protects "speech", not "conduct". So where is the line that divides speech from conduct? Would distributing the source code of a complete DVD player that includes deCSS along with build scripts and instructions on how to build and use it to play DVDs be considered "speech"? Or would it cross the line from speech about the DVD CCA trade secrets into use of the DVD CCA trade secrets?
Does this ruling mean that the developers of Xine can go ahead and distribute a CSS-enabled DVD input plugin in their next source tarball? That's not at all clear to me...
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
``Code is for compilers, text is for people''?
No.
A natural language like English is, of course, the preferred means of communication for informal discourse. Natural languages, however, are often too ambiguous and verbose to function well when expressing precise algorithms.
Those of you who are programmers, you tell me: which is easier to understand, the DeCSS code in C, or the same code in haiku? (I think you can find the latter off Dr. Felten's homepage at Princeton.) Which is easier to work with?
Taken at its face value and out of context, the court's statement is going to be somewhat ridiculous, yes. However, that does not change the fact that programming languages are as useful for communicating algorithms between people as they are for communicating algorithms from a person to a computer.