Slashdot Mirror
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 told Valenti that we needed to pay those judges more. Ah well, I wonder how much an Amendment costs?
Best Slashdot Co
It's been so long since the right thing has happened in an intellectual property-related case, that I don't believe it.
Now can I wear my T-shirt with DeCSS code on it without going to jail?
"With sufficient thrust, pigs fly just fine." -- RFC 1925
Ashcroft locks up Appeals Court.
In an unprecedented move, Attorney General John Ashcroft locked up all the Appeals Court judges while waving his arms in the air screaming something about terrorists. In a later statement he made the comment "How could anyone imagine anyone but a terrorist thinking free speech was somehow more important than national security?". Reporters who asked provocotive questions were also taken away for correctional training.
Fear: When you see B8 00 4C CD 21 and know what it means
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.
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, what they're saying is basically is that the RIAA's profits don't rank as high as the 1st amendment. Anybody else been waiting a couple years to hear that.
for those who prefer text over .pdf or .doc, try here ....
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.
notice the quote:
"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."
This only prevents the preliminary injunction, it does not prevent a full trial....
Well, it is certainly a good thing that the Supreme Court holds that a language having a "functional aspect" is still protected speech.
Now I can rest easy that when good english language processors come about and all human language is source code we will still have a first amendment.
Besides, it was really taking my little brother a long time to decrypt some of my DVDs with the instructions I told him in English.
Duhhhh....
>>Or you can go straight to the PDF.
Aren't we supposed to be boycotting Adobe?
Linux User #296508 Get Counted!
[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.
Don't worry, Amendments are cheap.
We have lots of Congressman and Senators paid for.
Maybe we can borrow a President from Microsoft for a while so we don't have to wait for our 2/3rds majority to be paid for.
This space for rent. All reasonable inquiries will be entertained at proprietors discretion.
...for your information ma'am, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!
dude: Walter, this is not a First Amendment issue...
#!/usr/bin/perl :::: qrpff
, _) [20]&48){D=89;_=unqb24,qT,@
2 5,_;H=73;O=$b[4]>8^(P=(E=255)&(Q>>12^Q> ;>4^Q/8^Q))>8^(E&(F=(S=O>>14&7^O)
H O- U_]/\$$&/g;s/q/pack+/g;eval
# 472-byte qrpff, Keith Winstein and Marc Horowitz
# MPEG 2 PS VOB file -> descrambled output on stdout.
# usage: perl -I
# where k1..k5 are the title key bytes in least to most-significant order
s''$/=\2048;while(){G=29;R=142;if((@a=unqT="C*"
b=map{ord qB8,unqb8,qT,_^$a[--D]}@INC;s/...$/1$&/;Q=unqV,qb
^S*8^S>=8
)+=P+(~F&E))for@a[128..$#a]}print+qT,@a}';s/[D-
They view the UTSA as not being based on Constitutional principles, and therefore not clashing at all with 1st Amendment or the Constitution...
While the harm to the defendent is minor for not posting DeCSS and the harm to the plaintiff for having DeCSS posted is considerable, the cost of abridging the 1st Amendment rights of Bunner outweight the need of the DVDCCA(?) to keep DeCSS off the net.
That source code *is* speech, especially between computer programmers and is a language unto them the way Hebrew is or Russian is...
That if the 1st Amendment cannot be restricted over matters of national security, it can hardly be restricted in a matter of this level...
That copyright law does have an expiration date for it's protections, but that UTSA *does not*, or that the UTSA does not make allowances for fair use... Man, this is good!
GPL Deconstructed
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
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.
"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.
while (!TiredOfHearingIt)
System.out.println("This decision Rocks!");
System.out.println("Score one for the good guys!");
Karma: Professionally Doomed (mostly affected by inability to keep opinions to self)
On Page 5 of the Doc. form, slashdot.org gets a callout /. has been mentioned in court decsions (the first being the scientology thing?). Well, just thought I'd mention it.
Finally, Bunner submitted his own declaration. He admitted that he had become aware of DeCSS by "reading and participating in discussions held on a news web site entitled 'slashdot.org.' "
Basicly it's Burnner saying that he had prior knowedlge of DeCSS thanks to us here. So, what is this, the 2en time that
Sleep is for the weak!
No, you cannot.
This reversed the preliminary injunction only. That means that DeCSS can be distributed in source code form. If you read the PDF carefully (hint, hint) the appeals court says that, indeed, the trial court might decide to assess financial penalties for the improper disclosure, if any is found to exist. The case is still headed to trial--just without the odious preliminary injunction.
The other posters who pointed out how bad a ruling the PI was are right; it was just a matter of time before someone with judicial authority understood the "if it can be put on a T-shirt, it's speech" argument.
There are still a lot of scary, possible outcomes relating to reverse-engineering, jurisdictions which govern license agreements, and other issues. We're NOT out of the woods on this one yet, folks.
"From of old, there are not lacking things that have attained Oneness." - Lao Tzu
Good to hear.
;) ...
Still keeping my mirror up at http://cyberstar.nu/ just in case though (I even got a mail from the MPAA asking me to remove it
- Cyberstar
"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".
Actually that is not the case, and by the way IANAL, but I am a first year law student. As the appellate court said they make no judgement as to whether or not there can be granted permanent injunctive relief nor on damages. They merely said the plantiff could not have a preliminary injunction. Besides, this case did not deal with the DMCA. It deals with the UTSA which is a totally separate and quite different law which had been around for longer than the DMCA. Publishing it is in fact a violation of the DMCA and the defendant could likely be enjoined under that law if the plantiff were to file for injunctive relief under that law unless the DMCA is held to be unconstitutional (which is still going through our courts and probably will be for another year or so). This does not make the other DeCSS cases go away because currently in MPAA vs. Emmanuel Goldstein relief is being sought under the DMCA.
That's got to be the best bang for the buck that I've ever seen from contributing to an advocacy group.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
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...
One for the Good Guys!
Thanx to all you involved with this directly!
ttyl
Farrell
CAN-CON 2019 - Ottawa's only book oriented Science Fiction Convention! October 18-20, Sheraton Hotel, Ottawa, Canada h
The last line of the ruling:
The order granting a preliminary injunction is reversed. Defendant Andrew Bunner shall recover his appellate costs.
Of course, that only covers his appellate costs, but it's at least something.
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.
Did anyone ever really doubt the 6th district? I mean, aren't those honors from Berkeley, mostly? Seriously, all this chatter and breathing of sighs of relief is a little embarassing. Expect the best from your justice system. And dont be so surprized when you get it. This is still America.
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'.
If you read the decision, you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright, just that the First Amendment trumps prior restraint in the form of preliminary injunctions in a trade secret case of this kind. The appeals court could still conceivaly come back and approve a final judgement against the distribution of DeCSS, and the court will surely uphold actions against individuals distributing copyrighted DVD materials through benefit of DeCSS.
Which puts matters back into the interesting realm of practical enforcement of copyright on an open Internet.
- jon
Ganymede, a GPL'ed metadirectory for UNIX
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.
I got the impression that this was all about the DMCA, yet it seems that they are actually using Trade Secret law to suppress DECSS, not the DMCA...
If you don't have a copy of DeCSS yet, go download a copy right now. I've got that program and so much more, link in the my sig.
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
Yes, it's way to scary to program in assembler now-a-days. The human brain can't store both Perl and Assembler code, so one of them has to go.
Is the court filing available in source code form?
:)
-Puk
Looks like this document is full of quotes for us to enjoy here. But for those of us looking to play DVDs on Linux using DeCSS or the information contain therein, this line was particularly reassuring:
Although the social value of DeCSS may be questionable, it is nonetheless pure speech
Cheers,
Toby Haynes
Anything I post is strictly my own thoughts and doesn't necessarily have anything to do with the opinions of IBM.
While the expressive nature of source code has just been affirmed by the court I think we should note that the functional nature of compiled source code can still be regulated.
I'm suspicious of WinXP and other versions for that matter. I'm suspicious that even though the SSSCA seems to have been put to bed for the moment that assaults on our systems are yet to be devised.
So far the privacy of your own home is almost intact but this will be an ongoing game.
Encouraged but still paranoid.
Your analogy limps pretty badly. I think that few people would deny that plans and blueprints are preferred methods of communications among civil engineers. The bridge itself would be more like object code, which only the truly l33t use to communicate with other humans. Source code, on the other hand, is perfectly valid means of communication. Ever see a civil engineering textbook with an actual bridge in it? How about a programming book with source code?
Actually it's more like saying blueprints are the preferred method of communiction among civil engineers. And they are.
"Prefiero morir de pie que vivir siempre arrodillado!"
The decision made a point of mentioning that UCTA language allows the potential perpetual withholding of information, whereas the Constitutional basis for the Copyright Act specifies that protection is for a limited time. (IANAL) but this seems to me to be a fair basis for overturning at least that part of the UCTA, and similar recent Acts which appear to be based on yet contradict this part of the Constitution. It will be interesting (to me, anyway,) to see whether this gets picked up and used in current or later cases.
Perhaps, but one of the difference is that the DMCA is a federal statute that does invoke a constitutional issue (the Commerce Clause) and thus there will be some constitutional balancing.
Trade secret law is a state issue and thus does not invoke a competing constitutional issue.
Finally, the court didn't say that it was okay to disclose DeCSS. They said that the government cannot act to prevent disclosure before it occurs by issuing an injunction. No prior restraint.
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.
Anybody care to speculate? (Not that mere speculation ever grabs any traction here on /. mind you ;)
Those certainly were interesting times.
You could've hired me.
Source code is, however, much prefered if English isin't known by one of the two parties in the exchange. Imagine talking to Microsoft tech support lackies who only spoke Bushman. :)
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?
There should be a compromise middle ground. A Linux player could be build that would comply with the 'handcuffs' imposed by the license agreement, though the open source nature of the beast means users would have to voluntarly live by the agreement since they could just modify the code. The only point where fair use was violated was there NOT being a linux player. Is it fair use to be able to make copies of a DVD disk? (perhaps to be able to view it on a VHS machine as well).
Aye, but if you didn't have the code to begin with, you wouldn't be able to communicate with your peers, you fucking moron (i've got the karma to blow), so flame on...
"Hey bob, why don't you use a for loop, oh wait, I can't say that, never mind that, just use that thingy to talk to the other thingy to get the stuff we need done done..."
who cares, all the stuff you guys have posted is officially *speech* :)
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.
The right to keep an bare Digital Crobar-arms.
Can you imagine how much free speech changed with the second Amendment?
It passed? Awww, *SHOOT*...Ack, no wait!!! just an expression!!!
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
Quick. Someone at RedHat, Mandrake, or some other distribution put out a DVD player package. Make a big stink about "innovation" and "giving the customer what they want" If the govt. tells you to stop, counter with:
1) "stop what?"
2) "it is too tightly integrated w/ the OS"
3) "we need to innovate"
4) "OK, we'll change the name of the program"
JET Program: see Japan, meet intere
I'm seeing a lot of interesting cases being cited in this ruling. Some have been mentioned already, and a few others have caught my eye (Religious Technology Center v Lerma (E.D.Va. 1995) 897 F.Supp. 260, 263. - Isn't the RTC the Scientology group?) Is there an online resource for a summary of these rulings, or is this a situtation where you need paralegals and a wall of books?
The real obstacle ahead is the DMCA, which gives legislative weight to EULAs. In this case they weren't challenging the DMCA. The court sidestepped talking about the DMCA issue by claiming that they were not going to rule on whether Jon Johannsen's reverse engineering in Norway was "proper". But that's the real problem here: we are still being denied our "fair use" of software, and it's not even clear whether people in countries with less restrictive laws can exercise those rights for us.
It doesn't look good in this area to me. I doubt the DMCA will be overturned since the issue here is not "free spech" vs "trade secrets", but "IP rights" vs "fair use". IP rights are guaranteed in the constitution and its not clear that "fair use" is. The best we can hope for is that some court will rule that the constitution both guarantees those IP rights but also limits those as well (a la "fair use") and thus EULAs can't impose Draconian rules on how to use software.
Damn straight! I always prefer espresso when exchanging information and ideas about progr-
Oh. expressive. Never mind. :-)
(Personal pet peeve of mine is when people do the reverse: refer to the coffee drink as "expresso".)
You cannot apply a technological solution to a sociological problem. (Edwards' Law)
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.
Is a "trade secret" a legally protected entity, and not just "this thing we're not telling anyone, because it's important they don't know about it"?
I thought the algorithms stopped being "trade secrets" as soon as they were publically know.
Yours Sincerely, Michael.
Aside from the fact that this court did not say that DeCSS is so innately evil that it must be stopped immediately, it also made two interesting points. These points will have an impact on upcoming legal precedings, even though they stated that they didnt want to make any judgements themselves.
1. computer source code is speech
2. DeCSS is probably legal in any case if it was not wrongfully obtained
While point #1 may help other cases alot more than the fate of DeCSS, it certainly helps a great deal.
Point #2 is what is really going to help give us the result we want in the final court. Most of the argument in the pdf hinges on whether or not the info for DeCSS was wrongfully obtained. They further boil it down to the click through agreement(and then stop, as they claim to not want to make a decision here). If later courts follow this logic, their cases will hinge on the validity of click-through licenses. These licenses never have been upheld; companies like to pretend they are legal but no court would support that because it only serves to screw over the consumer. If later courts follow the logic precident made in this case, we are all set.
However, if $ talks then certain judges may choose to ignore this. I guess we have to hope for honesty.
"Never, never suspect the dreams within the dreams of dreaming children." ~The Amazon Quartet
That was a very interesting read. I do like stories that have a happy ending. :)
What was most interesting was the distinction made between copyrighted works and trade secrets.
Since copyrighted works have a "fair use" policy, it is clear why the DVDCCA attacked under the premise of a "Trade secret" violation. However, the strategy backfired. severely:
My favorite quote (2nd hand source noted) was this:
"'If a threat to national security was insufficient to warrant a prior restraint in New York Times Co. v. United States, the threat to plaintiff's copyrights and trade secrets is woefully inadequate.' (Religious Technology Center v. Lerma (E.D.Va. 1995) 897 F.Supp. 260, 263.)"
Ouch, indeed! This may mean the eventual demise of the California Trade Secrets Act, as its scope is to far-reaching.
What was of interest, however, is that there was no discussion of the DMCA, which may have aided the cause of the DVDCCA. Perhaps the DCDCCA did not want to use that trump card, for fear that their case may rise to a federal court, and bring the DMCA under scrutiny.
Why is that interesting? The DVDCCA must have felt that their strongest case did not lie in protection under the DMCA
(chapter 12, section 1201, subsection b), aware of the (obvious) orthogonality of the DMCA vs Frist Amendment, but rather in trying to re-address the issue under the pretenses of a trade secret.
Oh, BTW, here is that bit from the DMCA to which I referred:
"ADDITIONAL VIOLATIONS.
(1) No person shall manufac-ture, import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof,..."
Of couse, IANAL (but I play one on slashdot!).
-D
If code is speech, and I think that will be found to be legitmate sooner or later, can one not legitimately publish a Free DVD Player Suite as speech against the DVDCAA's restrictive licensing scheme?
Either way, cow's out of the barn. People have been ripping, compressing, and trading DVD's in person via CDR and over Usenet and P2P apps for many, many months now. Even if this is overturned, detonated, whatever... the tools are out there, and they're being used.
Sorry guys. Play again!
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
California is part of the Ninth Circuit, so I wonder why the judge in this case didn't cite Bernstein v. Reno, wherein the Ninth Circuit explicitly held up source code as speech?
Yes, I know that's federal and not state.
Fascism starts when the efficiency of the government becomes more important than the rights of the people.
I've posted this in a couple of replies, so I am probably being redundant. However, I don't see this being discussed, and I think this will be a very important issue.
The appeals court still allows relief on any action that violates the trade secrets. It just allows the source code speech. My humble interpretation -- You can post the DeCss source code, but you can't compile it (object code not speech accd. to CA appeals court) or use it (action).
... if you have a propensity to make somewhat loud jubilant vocal proclamations when you read good news. I did... it went something like "Yes! Yes! Yes! Woohoo!" The loudness turned more than a few heads, and I had one guy privately ask me if I was trying to show that guys could fake it too.
File under 'M' for 'Manic ranting'
Yes, but sometimes showing commented source code for a complex algorithm is more illustrative of the implementation of the algorithm than attempting to supply a verbose explanation in English, which is optimized for less technical forms of communication. Source code is thus a preferred method of discourse for certain contexts.
Regardless, what the court essentially was saying was, "Is source code a form of expression? Yes. Are the movie studios' intellectual property rights more important than the near absolute right to freedom of expression the First Amendment secures? No, and don't give us any of that 'national security' crap, either."
N4st0r, trixx0r h0bb1tz0rz! Th3y st0l3 0ur pr3c10uzz!
20 January 2017: the End of an Error.
That seems to say that the interoperable systems committee is on the side wanting to stop DeCSS. I thought the whole point of DeCSS was to promote interoperability.
I guess it must be one of those "1984" things. War is peace, freedom is slavery, interoperability is DVDCCA restrictions. And the American Committee for Interoperable Systems must be something like the Ministry of Love.
You are correct that this is a review of the preliminary injunction and that the real issue in this case is yet to be decided. But can you really say that the ability to watch some trite Hollywood bollocks on an unlicensed player, or the ability to skip the previews of next months iteration of same, is more significant than the establishment of a judicial precedent for the truth:
equally_protected(source code, pure speech).
C'mon.
illegitimii non ingravare
I just read the decision, and I thought it was terrific. When I read the quote from the trade secrets act on page 10 of the opinion, point (3) really bothered me. Point (2) didn't, as it is long established that the First Amendment right to free speech is alienable, that is, it can be signed away in contract. But point (3) seemed to restrict the free speech rights of others who don't enter into a contract. I wondered how this could be constitutional, and I was very pleasantly surprised several pages later to see the court rule that that provision of the law is indeed unconstitutional! What a great decision!
But I found one fatal flaw in the decision, which could basically negate the conclusions when the case goes to trial.
On page 2 of the opinion, in the factual background section, the court states "DeCSS consists of computer source code which describes a method..." and in a footnote describes computer source code as "the language in which computer programmers write their computer programs."
Later in the opinion, in their analysis of the applicability of Junger vs Daley they first quote from that decision: "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." And further add "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."
And a careful reading of the opinion makes it clear, they rely heavily on this analysis of Junger vs Daley in reaching their decision to reverse the preliminary injuction.
The problem is there is an error in their factual background. DeCSS is not source code, but rather a precompiled Windows executable! As far as I know, Jon Johansen has never even released the source code, and even if he as done so by now, he hadn't at the time this suit was brought. I haven't read all the trial documents, so I don't know how this error crept in, but it quite clearly an error. There was a source code package called "css_auth" which was to be included in a Linux DVD driver, and it had the effect of authorizing a DVD-ROM drive to read the keys required for DVD movie playback, but DeCSS is something different entirely, and it is clearly compiled object code, and not source!
You may object at this point that there really isn't a difference between source and object code, as was pointed out by Dr. Touretzky in his testimony in the MPAA vs 2600 case in New York, but this court clearly defines the difference between the two as it understands it, then clearly mislables DeCSS as "source code".
Don't get me wrong, I sure hope Bunner wins this case, but the fact that the one decision in his favor is based on a major factual error does not bode well.
I don't have my copy of the Webster dictionary with me, but my Oxford dictionary (British) lists both spellings: license and licence.
I think the American legal system uses the Webster dictionary, so can anyone who has one handy check to see if both spellings are permissible?
For this kind of malicious persecution, the DVDCCA should be considered an anti-American terrorist group.
I wouldn't call them terrorists. Frivolous litigation is a far cry from terrorism. Let's not dilute the term, please.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Actually she's the same judge who is now looking to nail the RIAA to another wall.
Will it be made public? I would LOVE to see Hillary tacked up and made available for public derision, and perhaps tomatoes ;)
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
If I followed it correctly, they compared trade secret laws to copyright. By fair use, scholarly discussion, criticism, and excerpts are allowed of copyrighted material, which would totally reveal most trade secrets in no time. The only way to keep a trade secret under copyright law would be to KEEP IT SECRET.
They also said the right to a fair trial didn't take precedence over the right to free speech. Wow. That doesn't sound like how I've heard things practiced. Today I heard that many people were being held as material witnesses to the terrorist attack, and had not been allowed to tell anyone they were being held.
Another comparison that occurred to me as I read the ruling was that trade secretes are like selling a car with hood shut, and requiring car buyers to sign an agreement never to open the hood. Car companies could do that. What would be their recourse if someone actually opened the hood?
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
Certainly, this is a victory for the open source crowd. The idea that source code is speech is so natural to us as to be common sense. Having that view upheld by the court is indeed a triumph of law.
However, I'm afraid I have to put a damper on the fun. The court ruled that source code is speech; compiled executables received no such protection. As such, posession of the DeCSS source code is legal, but use or posession of binaries, or even compilation of source (which would produce a binary) is not legal. "You can have it, but you can't use it."
As a practical matter ( WARNING! I am not a lawyer. This is not legal advice! If you try this don't say I told you it was OK! If ever there was a time for the BLINK tag, it's this disclaimer...), since you can posess the source code, there is nothing to realistically stop you from using the binaries. In theory, when the system works right, you cannot be searched without a warrant, which requires probable cause to obtain. If you give the feds probable cause, you deserve what you get, but if you keep your mouth shut and use the software quitely in your home, nobody should be able to get a warrant, and you should not be subject to prosecution (under the rule of "it's only illegal if you get caught"). This would also rule out binary distribution--draws attention to yourself. ( Another BLINK disclaimer: I am not advocating breaking any law. I am merely offering my uninformed interpretation of the legal system. ) The DMCA has not been overturned here, it has just been found not to apply to source code. And for those who are thinking what I'm thinking, interpreted languages aren't a back door. You may be able to posess the Perl version of DeCSS, which is executed from source (for all practical purposes), but execution would be circumvention, and the DMCA says "no" to that.
Good points from the case:
Bad points:
Brief summary, in my own words: you can have it, but you can't use it.
"Make it ten--I am only a poor corrupt official."
--Captain Louis Renault (Claude Rains), Casablanca
``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.
Ouch, indeed! This may mean the eventual demise of the California Trade Secrets Act, as its scope is to far-reaching.
No, it's old hat that trade secrets only bind people that have a "duty" to keep the secret. That can come from a contractual agreement (an NDA) or a fiduciary duty. You also have a "duty" to not break the law, so blabbing about the results of your industrial spying won't cut it.
Computer code (at least in the case of compiled languages) is not the final product. One needs a compiler to produce the final product just as one needs a construction crew to finish a bridge. The code is merely a blueprint, a very detailed one, but nonetheless just a set of instructions.
And luckily for us, construction crews are not yet illegal, nor do you have to have a licence to own one. You do need to have a licence to use one to construct a bridge though (usually), even on your own property (building codes).
I wonder how long until you have to have a licence of programming ability and submit your 'blueprints' to a central authority before building a program?
All that matters is whether the DVDCCA could show evidence that Johansen agreed to and subsequently broke a legal contract.
IANAL, and IANA{Citizen of the US of A} either, but the DVDCCA also have to show evidence that it was lawful for Johansen to agree to that contract. If the law in Norway is that reverse engineering is lawful for interoperability, then any clauses in the click-wrap agreement are null and void, and hence Johansen can be considered to have not agreed to them, regardless of what the agreement actually says.
Especially if he purchased the software and specified the country in which he was purchasing at the time, I would argue that the company selling the software was implicitly accepting the changes to their click-wrap agreement that would match the laws in the jurisdiction to which they were selling.
no, but the Altair did.
You could've hired me.
that's partly my point... the U.S. government has recently diluted the term in defining what are considered acts of terrorism under the law.
You could've hired me.
Then, let's say, what if a properly licensed manufacturer, made a new DVD player with, oh, let's say, flashable firmware. Or other programmable features. Now geeks can circulate copies of replacement software for the Brand-X player that circumvent the nasty region coding, encrypted digital outputs, etc. This way a player could still gain popularity, although not because they officially did so, but because that player does away with the restrictive features.
I'll see your senator, and I'll raise you two judges.
How bout this, as a good basis:
"If it can be copyrighted, it's speech!"
Nicotine free Amish .sig.
Yeah, you could do it like that. I challenge you to find one programmer who prefers that.
Nicotine free Amish .sig.
Fairtunes.com
Fans: Fairtunes allows (music) fans to voluntarily send money, compensate or tip, any artist for their work.
Artists: Fairtunes empowers any artist to receive money online in the form of a voluntary payment. Start searching by using the box on the left or you can jump into the discussion on digital music and voluntary payments below.
you can view a list of all the donations, some have messages to the artists, thanking them, or why they are sending the money.
IIRC, the act of burning the American flag is protected by the First Amendment because it is a way of communicating your political beliefs to another person. Written communication is protected even though it is not literally "speech". Likewise, photographs allow people to communicate without using speech, so they too are protected. Why should object code be any different? Granted, there are very few people who can make any sense out of object code. The same is probably true of Joyce's Ulysses. But if a work is known to have some meaning, even if that meaning is obscure, it should be protected by the First Amendment.
America might be a special case, but from over here, it looks like the market will kill region coding far faster than any court.
Region 1 is a special case, since MPAA relases tend to happen there first. So you simply don't have people wanting to import DVDs of "blockbusters" they can't buy.
"That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. "
It seems to me that if code is considered speech inasmuch as a standard mathematical notation, does this mean I can implement patented algorithms and distribute its source code as long as it is not converted into a device (compiled)?
Code of Patented Algorithm == Free Speech???
Compiled Code of Patented Algorithm == Patent Violation???
What do you guys think?
"Communism is like having one [local] phone company " - Lenny Bruce
There isn't really any mathematical difference between the master key and a session key encrypted with that master key, as one can be transformed to the other. That's why, after the session key is know for a disk, it's possible to establish what the other master keys are.
That's a big 'ol "No shit!" props to you! Heheheh...
Um, a few lines of assembler
You don't say "a few lines of compiler," do you? Say "a few lines of assembly language."
do practically nothing
Four lines of 6502 assembly language can detect whether a program runs on NESticle or on Nintendo hardware:
To see how this works, visit my Everything 2 writeup about NESticle.although I invite you to memorize the 700+ instructions in the PIII instruction set
Everyday asm programming (i.e. not writing the lowest level of kernel VM code) needs only about 50 instructions per problem domain (intmath, fpumath, mmx/sse, etc), and that's on a CISC chip. RISC instruction sets have a much smaller and much more orthogonal instruction set. For a computer architecture class at Rose-Hulman, I once designed and implemented a 16-bit RISC machine with a set of 15 instructions (8 arithmetic, 4 control, 3 data movement) based loosely on the MIPS architecture. But then I learned how ARM7TDMI's Thumb instruction set used many of the tricks I thought I invented.
Will I retire or break 10K?
If source code is expressive communication and object code is not, I wonder what the implications for copyright of executables are? If executables are not expressions of their authors, they shouldn't be considered creative works entitled to copyright protection like novels or art. They would be mere machines. As such, patents could protect parts of them, but only the novel inventions, a more limited protection than copyright.
We have, of course, a chicken and egg problem, but the way to attack the RIAA problem is that they shouldn't be so ABLE to buy congressmen - and the way to stop that is real finance reform.
The way to do THAT is to vote out the people who won't vote for it, and not be distracted by shorter term issues.
Looking for freelance Actionscript (Flash/Flex) or ColdFusion work and/or freelance developers. Email me, put Slashdot
Actually, Prolog constants should be lowercase:
:- works_for (X,microsoft).
? - can (microsoft_employees, code)
rocks (this_ruling).
cannot (X,code)
Make even shorter URLs - 8LN.org