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Elcomsoft Case Will Proceed
An Anonymous Coward writes "Reuters, via the NY Times (free registration required) reports that Elcomsoft's final motions to dismiss were denied. Apparently code *is* protected speech, but... not protected from the DMCA. But most interesting to me was this part: 'The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,' the judge wrote in a 35-page opinion. 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.' The EFF has the whole scoop as usual." There's a Wired story about the decision, and the judge's order is available.
One thing I don't understand about this case is the fact that Elcomsoft is based in Russia. What gives the US the authority to prosecute a foreign company under US law?
There is no recognized First Amendment right to Fair Use. Will this judge be willing to be the one to set the precedent? Slashdot devotees wait with bated breath.
I have been pwned because my
This just in, cracking commercial software or encrypted data is illegal. Film at 11.
Job? I don't have time to get a job! Who will sit around and bitch about being broke and unemployed then?
The government should have a friends/foes list like the one used in slashdot. Garrett Brown would surely be a welcome addition to my foes list.
Gagging a person doesn't violate their free speech.
After all, they only have to struggle a little harder to express themselves
</sarcasm>
Where do they get these judges?
"It is a greater offense to steal men's labor, than their clothes"
Here's an analogy you may find interesting:
"The DMCA (Dealer Mechanic Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their vehicle (because it states that you can only seek repairs or purchase parts from the dealer where you purchased your car),' the judge wrote in a 35-page opinion. 'The fair user may find it more inconvenient to engage in certain fair uses with regard to their modern vehicles, but nevertheless, fair use is still available, for a price."
or...
"The BMCA (Book Maker Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their books (because it states that you can only open the cover of the book using a special decoder tool that must be registered and periodically renewed by the book publisher),' the judge wrote in a 35-page opinion. 'The fair user may find it more burdernsome to engage in certain fair uses with regard to their book collection, but nevertheless, fair use is still available, as long as the book publisher remains in business."
When as these idiot judges going to learn? Either we have a first sale doctrine...or we don't. Why do such backward-thinking judges somehow decide that just because we are selling very long numbers instead of books and cars that putting rules and restrictions on ANYTHING AS PART OF A SALE is effectively doing away with this longstanding legal precident?
The day will come when matter can be easily replicated and all book publishers and car makers are going to be able to see are blueprints, designs, and other electronic information. All these companies are doing is ensuring that people turn to back alley and underground channels. But I understand their Chicken Little approach to intellectual property and the back-ass-wards way they follow it.
What I don't understand is judges...who are put in our system of government to provide a check and balance to stupid laws...basically deciding that a small risk to corporate profits outweighs a society-wide consequence to freedom of access to information. WHO IS PAYING THESE PEOPLE OFF?
- JoeShmoe
.
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Hey. Just a couple of days I donated $20 to the EFF (grad student budget constraints).
:CueCats, all donated $20 to the EFF, or other organizations, suddenly we might be able to buy some justice as well.
I'll tell you something, laws can be bought ("donations" to lesiglators), and court cases can be bought (better lawyers cost more). It seems like big business, etc., always win these things, but the reason is because they have the money to do the buying.
If us, the regular people, those who want to own what we pay for, who want the right to watch our DVDs with the player we choose, to save our e-books on to a different medium, to uninstall parts of the operating system that we don't want, to take apart our
So forego a couple of extra beers, a couple of rounds of pool, StarWars tickets, etc. and dontate a couple of bucks. Maybe then we can see a difference.
Just an idea.
Okay... I almost jizzed in my pants just looking at that site. No ads or anything and really hot nude Japanese women!
The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.
... most people would rather avoid breaking the law than possibly landing in jail. In this case, most people would rather not exercise the full extent of their fair use than put in the effort to sidestep the DMCA. There is no difference, the DMCA "silencing effect" is an affront to free speech. I think the fact that a person intelligent enough to become a judge used this argument shows he has ulterior motives.
I'm sick of that argument. It's just not valid, if you make something "difficult" enough, people won't do it. And if people won't do it, it's equivalent to banning it. That it could be done "in theory" or by "people who are willing to put in extra effort" is irrelevant.
In fact, all laws work on a relative disincentive principle
Websurfing done right! StumbleUpon
It was also found that someone putting a foot up Judge Ronald Whyte's ass will in no way eliminates or substantially impair his ability to walk. The esteemed judge may find it more difficult to engage in certain quick strides but nevertheless, walking will still be possible.
Ok, now we're on the slippery slope, because now we can encrypt any digital content without preventing fair use. The judge is speaking about electronic books, but this argument applies to audio, video, and so on...
The judge agrees that software code is speech and is protected by first amendment rights, but then he proceeds to limit those rights even though fair use is a recognized right.
--
I have taken more out of alcohol than alcohol has taken out of me - Churchill
Interesting. Anna isn't a Japanese name.
I have been pwned because my
Fair use doesn't mean that one can hire monks to scribe
I take this from the EFF Supplemental Letter Brief in Corley v. Universal appeal
Unfortunately, the courts so far seem to be holding the opposite :-(
Sig: What Happened To The Censorware Project (censorware.org)
If you substitute 'book' for 'computer' and 'printed text' for 'computer data' it becomes pretty obvious just how stupid DMCA, SSSCA, CBDTPA, and all the DRM schemes are.
We're getting screwed because so many people find "computer bytes" to be myterious and magical. A byte is very much like a letter on a piece of paper. If it's legal to do something with a piece of paper, it should be legal on a computer.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Where do they get these judges?
From the Chilling Effect School of Law, of course!
"Einstein argued that [...] God is not capricious or arbitrary. No such faith comforts the software engineer." ~ Brooks
"The government contends that computer code is not speech and hence is not subject to First Amendment protections," he wrote. "The court disagrees. Computer software is expression that is protected by the copyright laws and is therefore 'speech' at some level, speech that is protected at some level by the First Amendment." It was my understanding (perhaps incorrectly) that one of the major premises in past cases and in pushing foward the DMCA is that code/programming was NOT protected under the 1st. While it apparently does not have bearing on THIS case, what would this ruling do to future cases that hinge on that arguement?
Find out about my new childrens book: SS Death Camp Criminal Batallion Go To Monte Carlo For The Massacre
How Obvious. Anyway, back to the point. I prefer Kaoru Sakurazawa myself. I'd post a link, but I'm at work, obviously.
I have been pwned because my
Step 1: Buy legit ebook.
Step 2: Open ebook.
Step 3: Grab screenshot, turn page, repeat.
Step 4: Embed graphic in Preview.
Step 5: Write script to automate process.
Step 6: Save as PDF
Step 7: Enjoy on system of choice and share with friends.
I hope non-infringing uses count for something...
Along this line, every digital program is a number in base 2. If one were to write a program A that outputs the number for Windows XP, and then write a program B that outputs the number for A, would program B be legal?
Program B does nothing but output a number. The number it outputs is not copyrighted.
What if you wrote a program that produced the number for the Windows XP binary minus seven? Would a program that adds seven then be copyrighted by microsoft?
Similarly,does a software binary copyright also cover the infinite number of programs that output that binary? Also, does copyright cover stuff like program B giving control over the infinite number of programs, that can be produced by the infinite number of programs, that can be produced by an infinite number of programs....
If the government actualy accepts code as speach, then software companies are screwed. They would have to outlaw every number, because it could be used as a key to generate the source code for Windows XP.
bash-2.04$
bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
...but some use is more fair than others!
If you really oppose the DMCA, MPAA, RIAA, etc. etc. stop consuming the products from those you hate. Do you really need to watch the latest movie? Do you really need to buy the CD and listen to music? There are other forms of entertainment. Go to the library and loan a book.
Judge Says Russia Software Company Can Be Tried
By REUTERS
Filed at 9:56 p.m. ET
SAN FRANCISCO (Reuters) - A federal judge on Wednesday denied final motions to dismiss a lawsuit against a Russian software company accused of violating a controversial U.S. copyright law that defense lawyers argued is unconstitutional.
U.S. District Court Judge Ronald Whyte in San Jose, California, rejected the argument of lawyers for ElcomSoft Co. Ltd. who said the 1998 Digital Millennium Copyright Act was overly vague, violated free speech rights and infringed on the established right to ``fair use'' of copyrighted material.
Moscow-based ElcomSoft briefly sold a computer program over the Internet last year that allowed people using Adobe Systems Inc.'s (ADBE.O) eBook Reader to circumvent copyright protections so they could copy and print digital books, as well as transfer them to other computers and have the computer read them aloud.
``The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,'' the judge wrote in a 35-page opinion. ``The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.''
In addition, Whyte noted that there has been no generally recognized First Amendment right to make back-up copies of electronic works.
``In short, the statute bans trafficking in any device that bypasses or circumvents a restriction on copying or performing a work,'' regardless of whether it was designed to enable fair use, Whyte said.
While agreeing with defense lawyers that computer code can be speech and thus protected by the First Amendment, the judge found that in enacting the DMCA, the U.S. Congress sought to ban code not because of what it says but because of what it does.
The case is seen as a crucial test of the DMCA, which civil rights advocates and software programmers say gives copyright owners broader rights than they have over non-digital material, at the expense of individual rights to legitimate users.
Movie studios and record labels argue that the law is necessary to prevent unauthorized copying of films and music over the Internet, where digital material is easily downloaded and swapped.
FREE SPEECH PROTECTIONS OF CODE
``In the digital age, more and more conduct occurs through the use of computers and over the Internet. Accordingly, more and more conduct occurs through ``speech'' by way of messages typed onto a keyboard or implemented through the use of computer code when the object code commands computers to perform certain functions,'' Whyte said.
``The mere fact that this conduct occurs at some level through expression does not elevate all such conduct to the highest levels of First Amendment protection,'' he said.
``The DMCA does not burden substantially more speech than is necessary to achieve the government's asserted goals of promoting electronic commerce, protecting copyrights and preventing electronic piracy,'' Whyte said.
A federal prosecutor declined to comment on the ruling. Meanwhile, defense lawyer Joseph Burton, of the San Francisco law firm of Duane Morris, said it is likely he will appeal the ruling.
``It's difficult to understand how, without digital tools, you can achieve fair use of digital material,'' Burton said from a hotel room in Chicago. ``To me that's a paradox.''
The programmer who wrote the product at the heart of the case was released with the promise that charges would be dropped against him in exchange for his testimony.
Dmitry Sklyarov, 27, returned home in December and vowed to return to testify in support of his employer. He was arrested last July after speaking at the DefCon hacker conference in Las Vegas.
A hearing is scheduled for May 20 at which the court is expected to set a trial date. ElcomSoft faces $2.25 million in fines if convicted.
The judge previously denied two other defense motions to dismiss the case.
JUDGE Says: 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.'
Fair use is still available.. well yeah! through elcom software program!! right?
The Corporate Giants of this country have been able to pass, what, in practice, is now a constitutional amendment outlawing speech which they find, shall we say, "obscene".
From the judgement:
The conversion accomplished by the AEBPR program enables a purchaser of an ebook to engage in "fair use" of an ebook without infringing the copyright law; ... Defendent was indicted for alleged violations of [the DMCA] (emphisis added.)
I can almost hear the Equity Lords yelling "Bad Speech! You go Squish Now!"
Obviously ;-) But I'll bet that the Lockmakers Consortium would love to have a law forbidding unauthorized duplication of "their" keys.
"Prefiero morir de pie que vivir siempre arrodillado!"
you sir, are a fuck.
Use the NYT Random Login Generator to get around that pesky registration requirement.
Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]
Please put your signature to its designated place -- Slashdot preferences->You->Sig. I have selected the Disable Sigs option in my preferences, and the way you're using your sigs kind of defeats the setting.
Sorry, I'm having a bad day.
Someone moderate this fucking post to -5 and bann him fucking dick.
by the way if you this page has a trojan virus in it as well.
What the hell is this judge refering to? I don't know of any permissible goverment regulation on speech(don't even start with the whole yelling fire in a crowded theater,that clearly does not apply). I was not even aware of diferent "levels" of speech. Is politcal speech protected less then artistic speech? how does one define where one level ends and the next begins? This idea is a pretty terrifying prospect to me.
How come the large software companies get away with stealing stuff all the time but when a little Russian company like Elcomsoft does something people go ape shit and try to throw them in prison. If someone like Microsoft would have done something similar to this (they have) they would have just gotten a slap on the wrist (a fine...meaningless to a rich software company). You don't see anyone trying to throw Bill in prison like they did to Dmitry Sklyarov
FoundNews.com - get paid to blog.,
US Supreme court: Elcomsoft! get your ass over here so we can prosecute you under our absurd new corporate-sponsored law!
Elcomsoft (from Moscow, making spitting noise with tongue): ppbthhpthhhh!!! I wave my private parts in your general direction, you filthy American Knnnnnnniggits!!
US: but if we don't do something Adobe will have our asses! If we piss them off, that means no more campaign donations or free anal beads!
Elcomsoft (still in Moscow): Your mother was a hamster and your father smelt of elderberries! etc. etc.
Seriously, would it be possible for Elcomsoft to just tell the US to piss off. I mean all this is is a corporation crying to mommy because their customers don't like their restrictive and unfriendly business tactics. Boo-fucking-hoo, go suck a dick Adobe. Either way what jurisdiction does the U.S. have over companies in Russia where the DMCA (thankfully) does not exist?
The saddest part of it all is that we'll never see any Elcomsoft employees at Defcon again, and I missed Dmitri's seminar....
dude u made my mom think i gay u fuckin fuck....... go suck a fuck...... i mean come on who post software like that sure its open sorce.
LIVE NUDE PETS!
Someone keep modding this down please. It needs to be put to -1 asap I'd say.
I'd to it myself except I don't moderate.
I think it's from the Kruschev or Brezhnev era.
A man comes to a consulting lawyer. The following conversation takes place:
MAN: I need to know, by the law, do I have the right to...
LAWYER: (interrupting) Yes, you do.
MAN: But I didn't tell you what it was yet. Do I have the right...
LAWYER: (interrupting) Yes, you do.
MAN: If you keep interrupting, how can I ask you?! So by the law, can I, or can't I...
LAWYER: (interrupting) No, you can't.
Not that I like people who create virii or worms more than the average person, but all of a sudden I just can't help but see that they too are only expressing themselves.
;-p
If only 'they' would create benign virii and worms that would only attack evil monopolistic instutions and leave the rest of us alone...
A fool throws a stone into a well and a thousand sages can not remove it.
we often see fairly insightful and eloquently worded posts in response to ludicrous rulings such as this, but how often do you think these judges actually hear stuff like this? Never I bet. All they get is a pat on the back from whatever corp. they are benefitting, and may even believe they are doing a good job. What I propose is that we select the top 10-20 best posts explaining "our" side of the story, and email them to the judge, lawyers, etc. in question. I find myself saddened that all of this talk on slashdot basically goes unnoticed, and it is primarily just "preaching to the choir." by compiling good arguments against this sort of government action, we can actually let them know how a large portion of the US (and the world) feels about these topics. Most people are happy to bitch and complain, but the problem is we aren't directing it to the right people.
If elcomsoft has a registered business entity in the USA, it can be attacked.
If they do not have such an entity, then it is thier distributor who has been importing and trafiking in illegal, DCMA violating software. The Distributor hosted it on its server, took money for it and comitted the crimes.
If the latter is the case, all Elcomsoft has to do is stay in Russia and no one can touch them.
This should be a serious lesson for all commercial entities that sell or want to sell software to US Persons:
Use external servers and payment services to sell your software
do not incorporate in the USA
do not allow your staff to travel to the USA, for any reason.
In this way, you can sell your software to Americans, and remain insulated from the American state.
Free speech vs. Copyright:
Freedom Of Speech And Injunctions In Intellectual Property Cases (Mark A. Lemley, Eugene Volokh)
Fair Use in terms of First Amendment:
Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings Of Fair Use Remain An Open Question
General Digital Copyright:
Selected Papers by Pamela Samuelson
These are good background to understand the concepts. Don't believe everything you read on Slashdot (though this sentence is one of the things you should believe :-) ).
Sig: What Happened To The Censorware Project (censorware.org)
That post making the analogy to gagging someone and then claiming not to have significantly impaired their free speech was right on target. It sounds already as if this judge has made his mind up, so they might as well start preparing their documents for the appeal.
I think the grounds will be that you cannot give someone a right and then prevent them from exercising that right, no matter if you significantly impair them or just annoy them. I mean, what if you were given the right to vote and then told you could only do so by travelling to your state's capital city? Technically you aren't being denied your right to vote, but for all practical purposes you are because it would be a huge inconvenience. I could see this going to the supreme court very easily, but what they'll do with it is anyone's guess.
There's no need to go to the NYT for this story (or any of the other stories linked here that I can remember.) NYT doesn't have a monopoly on reprinting Reuters feeds. Try Yahoo for instance.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
but there is nothing on. I am so bored I thought i would post my pathetic thoughts.
"Moscow-based ElcomSoft briefly sold a computer program over the Internet last year that allowed people using Adobe Systems Inc.'s (ADBE.O) eBook Reader to circumvent copyright protections so they could copy and print digital books, as well as transfer them to other computers and have the computer read them aloud."
I wonder if the dBook reader allows for 'Accessibillity' in that it includes a way to have the books 'read.. aloud'.
If not, this would be a very nice point to bring up in the trial. If Adobe hasn't provided a way for vision impaired individuals to access these eBooks they may be in for a rude awakening. Where are the laws on this? Anyone know what the current status is for 'Fair Access'?
A fool throws a stone into a well and a thousand sages can not remove it.
What if we take a copy of windows, and a copy of adobe's stuff... change all the references to Microsoft, Windows or Adobe with a hex editor, encrypt it with our own proprietry encryption and then start selling it...
They'd never be able to proove it was their code without violating the DCMA.
Quoth the poster:
> The fair user may find it more difficult to
> engage in certain fair uses with regard to
> electronic books, but nevertheless, fair use
> is still available.
When is 'fair use' not 'fair'? If fair use is not fair use, then perpetrators can be prosecuted. If the judge is admitting that Elcomsoft software falls under fair use, then they shouldn't have a case to answer.
It seems as though the fair use regulations are going to end up like tax legislation.
The judge's decision is like saying that in a proper communist society (where all people are "equal"), some people are "more equal" than others.
(Yes this does happen - athletes, doctors, etc. get a better (more equal) treatment than others in certain communist countries)
... 2>&1
Imagine a beowulf cluster of lawyers...oh wait ;)
Overbearing IP laws lead to a form of communism, not with the government at the helm but instead corporations.
Their claims of the sanctity of preserving Locke's "Life, Liberty, and Property" are doing just the opposite, in regards to the public at large.
With the example of the constant copyright extensions the corporations that establish hoards of content end up "owning" too much, only let it be doled out to the public at their whim. The public will never have anything of their own and all property will be at the disposal of the very select few at the heads of business.
Maybe if we can present this to polititions, of any party, we can create a new "Red Scare".
Are you or have you ever been a member of the entertainment industry?
Is code speech? I don't know. Can you copyright it? Apparently every company that has EVER written software thinks so. It's the very foundation of the software industry business model. The ability to copyright code is a basic assumption. Time and time again courts have found for the holder of the copyright in code theft cases. I think sufficient legal precident exists that says that code is speech.
Since code is speech, for the most part the DMCA should simply not apply. Most attempts to limit speech fail miserably; witness attempts to enforce COPA, video game age restrictions (in most juristictions,) and even virtual kiddie porn. If even kiddie porn is protected speech except under the narrowest of circumstances, source code should be a no brainer. The DMCA obviously is in conflict with the first ammendment. Had Elcomsoft simply copyrighted their source code and published as a book (A trick Zimmerman sucessfully used to get around the PGP restrictions in the USA) the question probably would never even have come up.
Furthermore, the assumption in the industry, again bourne up by legal precident, is that the source code copyright extends to binary executable files. If I put the Windows binaries up on a 31337 W4R3Z site, Microsoft will come after me for copyright violations, and they'd win. If I tried to argue that copyright did not apply to the executables, I'd get laughed out of court. This despite the fact that the opinion in Congress is currently that all code, source or binary, comprises a machine and has no speech component and may be arbitrarily restricted. If it is not speech, copyright must simply not apply. If copyright does not apply, the entire software industry is will bring lobbyists to bear faster than I can hit submit on this post.
obDisclamer: I am not a lawyer. But I watched most of the Ally McBeal episodes.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
If Elcomsoft loses and the judge imposes a huge fine and Elcomsoft refuses to pay. What happens then?
Do the Americans lock up any Elcomsoft employees in the USA at the time?
Do they issue extradition warrants to the Russian authorities?
Do they try to force the Russians to sieze the assets of Elcomsoft in Russia?
Something else....?
Thanks,
That was untill recently: They just changed the law, so that you can vote where you live, but if you do, you waive the right to have travel scholarships. Before, you could get a few bucks to travel home and visit your parents once a year. But if you vote, you loose that money. And with the costs of travel, that is very significant. But of course, some people may afford to travel on their own budget, but at the same time, they decided that students will no longer get discounts on state-sponsored trains. Wow.
The issue is of course that politicians are scared shitless of the possibility that students get voting rights. About 1/5 of Oslo's population are students, but only 1/30 are voters. So, if students got voting rights, they would actually have to listen to students, and that is obviously quite scary.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
If we just sit and watch, it'll be like that in 30 years. I'm not going to just sit and see it happen. I hope, neither will you.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
You can disable script-based pop-up windows in the preferences.
What gives the US the authority to prosecute a foreign company under US law?
Simple. Beacuse behind our corporations (and even those who choose to encorporate in Bermuta to avoid taxes) is the force of the U.S. Military. And our military is bigger and more bad-ass than theirs.
But what I find really scary is the Judge's stated rationale that speech is conduct! Short of fraud and inciting violence, it is not, and never shall be. The fundamental purpose of the 1st Ammendment is to make this clear and to keep meddlesome officials from interfering with speech they don't like.
This is in for Appeal.
...is really addicted to soap operas. This way, when he buys his new HDTV and compatible recording device he finds himself unable to record his favorite soaps. I also hope he scratches every single DVD he owns and accidently buys a few from another marketing zone.
On the Fifth Amendment and due process argument, Elcomsoft argued that the DMCA is too vague because it doesn't explain which devices are legal (because they are primarily designed to enable allowed fair uses) and which are not. The Court recognised the difference (explicit in the DMCA) between bypassing protection to simply obtain raw access to content, and bypassing protection to make a specific fair use of the content. The distinction is that in the latter case, the act of bypassing is allowed. However, it is still (explicit in the DMCA) illegal to make or traffic in a device to do this. Now, there's a quandary. You can obtain a bypassing device, and you can use it to make a fair use of the content, but you can't make or supply the device.
The government argued that there was no vagueness because all tools that allow bypassing a protection mechanism are banned, even those which it would be legal to use. The judge (believe it or not) agreed!
On the First Amendment, the court agreed that both source and object code is speech (nice), but then it gets nasty, citing from case history:
Yes, there it is. "Governmental interest" trumps free expression. Or: "I think what the Consitution meant to say was...". For those who missed it, the Consitution is aimed primarily at limiting the powers of government. Government cannot trump the Consitution, and especially it cannot do it whenever it feels like it simply by passing a law. Bear in mind that any law passed by Congress must surely qualify as "substantial governmental interest" (otherwise why did they pass it? They were bored?), and so any law that does not directly limit freedom of expression trumps the First Amendment. Appalling.
As regards to lumping the rights of copyright holders and the promotion of electronic commerce together (as mentioned in the EFF report, which I assumed was hyperbole), the court does do this several times, and claims that Congress did as well. Yes, that's right, copyright is now merely a mechanism to further commerce (and not to put content into the public domain, the actual intention). Viewed like this, there is of course no reason why copyright should ever expire, or why there should be any fair use rights other than perhaps the right to produce commentary for positive review. Negative criticism, parody and academic study do not contribute to "furthering commerce".
Further, the court finds that the government has a "substantial and legitimate interest" in "promoting commerce" (note: "promoting", not "protecting"), and that "The absense of effective technological restrictions to prevent copyright infringement would inevitably result in even more rampant piracy, with a corresponding likely decrease in the willingness of authors and owners of copyrighted works to produce them in digital form or make the works available on-line.". This effectively validates the DMCA and confirms that "promoting commerce" trumps fair use. This is a speculative conclusion based purely on subjective unsubtantiated material provided by the government, a conclusion that a higher court could well rip to shreds.
Other spurious conclusions: the defendants argued that the DMCA "effectively eliminates fair use" (my emphasis). The court ruled that "the DMCA does not "eliminate" fair use", and goes on to say that fair use is still possible by transcribing by hand. But note that the court only considers fair use for written works, which are at issue here. How do you transcribe a video clip?
The court makes this assertion again when considering whether Congress exceeded its authority when drawing up the DMCA, and again asserts that the DMCA does not prohibit fair use - but again only gives a counter example for textual works. Even the point about the DMCA preventing copying once the work is in the public domain is rejected: the court agrees that it would still not be legal to make or traffic in (and therefore obtain) a device to access the content, but once again asserts that this does not prevent copying, which is true only for transcribable text.
Basically, Elcomsoft are boned, and they're boned right from the start here, because while denying the dismissal, the court has stated clearly that all circumvention devices are illegal, even if they are primarily designed for legal fair use purposes. This one's going to have to go to a higher court, and as an aside, we really need a DMCA challenge that's not based on text, so it can be shown more clearly that the DMCA does "effectively eliminate" both fair use while under copyright, and full use when in the public domain.
IANAL, but then again, bear in mind that lawyers (like judges) deal only in what's legal, not what is right. This court has pointed out that the DMCA is stupid, but then asserts that just because it's stupid, it's not wrong, because Congress fully intended for it to be exactly that stupid. Go figure.
If you were blocking sigs, you wouldn't have to read this.
turn it around:
"The right to fair use is present but more difficult to use; that does not mean it isn't present."
Ok, your honor, we'd like you to submerge you in this tank of water and seal it shut.
For you see, the ability to breath is going to be difficult, but that does not mean it is not present.
There is O2 in air and water, so, by your logic you should be able to breath water because what you need is in the water.
There is an argument that...ahem...holds water.
.
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
Civil disobedience
so this is the same saying that the right to assemble peacefully is still enforced even in a situation where the person is tied up, gagged and held in jail for 2 weeks until the protest date has passed. Basically, the right exists, but it's harder to do.
The inability to use a right is the same as not having the right itself.
Also the fair use is not harder because of the DMCA. It's Illegal
AND YES. I know that Fair use is not a guaranteed right. But even the Supreme Court has sayed that it is infered
It's more like saying that it's a felony to manufacture a key to open the door to a car that you own; the key is a means to excercise a legal right, or perhaps an expression of the means to do so, but it is not a sandwich board for expression. What is this guy smoking?
I won't even mention the fact that he's on flimsy ground saying that fair use is possible; how, by retyping it yourself? What if audio or video were protected instead of text? And what happens when fair use is made impossible by technology, in his view? Does the law magically change? Does he suddenly reverse himself? Can fair usage be flat outlawed as long as it's "content neutral"? This judge may be really trying hard to avoid setting precedent by ruling with sophistry. Or, perhaps, letting the trial proceed so evidence can be presented so that he can rule on an actual point of law, but I doubt it.
On the other hand, his characterization of code as speech which nonetheless does not enjoy the full protection of speech is, er, interesting. He sounds like the kind of retard who finds it acceptable for the NYTimes to post links to DeCSS code, but illegal for 2600 to do so. The amount of contradictions and hypocrisy engendered by the DMCA is sufficient evidence that it's the kind of law that has no place in a free republic.
Expanding a vast wasteland since 1996.
Reminds me of a song:
You have the right to free speech
As long as you aren't dumb enough to actually try it.
--The Clash, Know Your Rights
Viv
Gmail invites for ip
What Elcom needs to do is get charges brought up against Adobe in Russian court. IANA(Russian)L, but I recall from an earlier article regarding this whole fiasco that Russian law falls very heavily on the side of consumer rights, and that under that legal framework Adobe's ebook encryption is actually illegal. Elcom's product was created for, and within, that legal framework.
I understand that the US has determined it has jurisdiction because they were able to purchase Elcom's product in the US from US based vendors. Fine, I can accept that; but turn about is fair play. Obviously Adobe ebooks are available in Russia, or Elcom's product wouldn't exist. I say that Elcom should use the same tactics against Adobe in Russia that Adobe has used against them here in the US.
And yes, I'm aware of Adobe's statement that they don't want Elcom prosecuted, and I think it's a bullshit PR stunt. If I shoot somebody, the fact that I didn't want them to die does not excuse the fact that I pointed the gun at them and pulled the trigger. Adobe is clearly trying to restrict the rights of the Russian people, and should be punished to the full extent of the law.
Under capitalism man exploits man. Under communism it's the other way around.
Then write to Adobe and tell them to drop the case. The way I see it, if I can only read and re-create(print, make backups of, print or copy/paste) their precious eBook through their software and it doesn't allow me to do what I want with it, then the the whole eBook concept is USELESS to me. I will not be buying any eBooks if I can't do what I want with them for my own reasons. If Adobe get enough comments like that they may change their mind.
On the other hand there is a little problem that they have here, and it's the license agreement that they have with all the publishers that use the eBook format. I'm sure that Adobe gets it's chunk of the sale and they are freaked out that this software will rip them off. Somehow I don't see the thrill of getting a ripped copy of an eBook, and I would think a large amount of the population would feel the same way.
Mabye Adobe needs lots of comments of reassurance that we won't use Elcomsoft's software to rip them off, promise...
The usual content-neutral restrictions are "time, place, and manner". Judge Whyte has added "function". But the function of computer code is inextricably tied to its content: the content defines the function.
I have posted a fuller version of this argument with source code examples at my site. I also address the "conduct" argument.
Let's see those megacorps pay for an amendment to the Second Law of Thermodynamics to survive the impending heat death of the universe! Take that, Rosen! You lose! You lose!
GMFTatsujin
Capitalism always turns into socialism does it? So all we have to do is wait and all of a sudden we'll have a healthcare free at the point of delivery, an end to poverty, equal pay for equal work, etc?
... I suspect it will as groups, be they businesses or collectives, in competition will ultimately have a winner and a loser, and the winner will then yield undo power over the loser ... ergo, authoritarianism emerges once again.
... until perhaps the supreme court hears the case (and even then, unlike 20 years ago, we can not count on a fair or sane decision).
Or are you another moron confusing "Socialism" with "Dictatorship"?'
Well, he's not exactly a moron for doing so. He is but a symptom of how effective 60 years of propoganda equating socialism with communism, and communism with authoritarianism, has been in the United States. You are likely a victim of similar disinformation, perhaps equating americans with uneducated bozos, Germans with Nazis, or some other equally absurd notion that has been pounded into your head by your regional media since birth. We are all of us victims of such things, and learning to recognize and repair these blindspots is a challenge we all face, and will likely continue to face all our lives.
It is interesting that the argument that capitalism always leads to a form of authoritarianism is gaining some very significant credibility with the current trends WRT copyright trumping free speech[1], wholesale corporate buyouts of governments both within and outside of the USA, the formation of unelected, transnational authorities such as WIPO and the WTO that have been given the authority to repeal local laws (and have used it, for example to remove one of California's environmental laws).
Communism may or may not tend toward authoritariansim (there was an anarchistic form of communism that worked for a number of years in Spain, until it was absorbed and legislated out of existence by the capitalist authorities, with the support of the authoritarian communists of eastern Europe who saw their own arguments in favor of authoritarianism threatened)
So I think economic systems are orthogonal to authoritariansim vs. liberal democracy or republicanism, and they all likely tend to lead toward a small, privileged class excersizing inapprpriate authority over the rest of humanity.
The only real defense against an emergent authoritarianism has nothing to do with the economic system in place, so long as it is not a centerally managed one. It has everything to do with a strong constitution that places strict limits on government, a government that adheres to that constitution, a relatively open and uncorrupted fourth estate (journalism), and an educated populace who gives a damn.
Unfortunately, we only have a strong constitution that limits government. We do not have a government that obeys that constitution, nor do we have a relatively open and uncorrupted fourth estate (a handfull of companies controls virtually every media outlet in the western world, troublesome books are routinely privished[2], journalists routinely threatened and/or bought off to silence stories[2], and editorial revisions which routinely change the meaning within the story are but a few examples of how dysfunctional the fourth estate has become). What is more, we do not have an educated public, nor do we have a public which gives a damn.
[1]The First Amendment guaranteeing free speech must always trump copyright, just as any amendment modifies the original document and/or any preceeding amendments. But then, the courts have by and large stopped even paying lip service to the constitution, so this minor fact is unlikely to get in the way of upholding a flagrantly unconstitutional law
[2]c.f. Into the Buzzsaw - 18 Award Winning Journalists expose the myth of a free press (including several Peabody award winners, a Pulitzer Prize winners, and several other well known and widely respected journalists)
The Future of Human Evolution: Autonomy
If code is protected speech, then the DMCA (or at least portions of it) is unconstitutional. I don't see how it can be any more complex than that. Constitutional rights have always been held at higher priority over laws passed by Congress.
How can the DMCA trump the First Ammendment in this way? It seems to me like the judge is saying, "Well, even though code is speech, and speech is guaranteed under the 1st. Ammendment, because the DMCA is so popular with all the companies that gave money to the Senators who appointed me, screw civil liberties and everything this country was founded on. Now shut up and face my wrath, you evil Russian communist/terrorist hackers!"
This case has been sickening from the moment it started. If anything, it has displayed how justice in the US is not blind. Elcomsoft is a small Russian firm, and is likely to be totally screwed over by this. A huge company from the US would get a slap on the wrist fine and be let off for the same thing, if it was even prosecuted in the first place.
"You spoony bard!" -Tellah
So that our legal system can protect the already powerful? so that our judges can sell out to the highest bidder?
Fathers and sons, and mothers too are DYING for this BULLSHIT?
Come on America, wake the FUCK UP!!!
Maybe Bin Laden had the right fucking idea. After all, the WTC was the symbol of big business. It was the symbol for this corporate purchased government we call America.
I'm ashamed to be American. I'm pissed that we are letting our best young men and women die to protect a fucked up sold out hypocritical government like the sorry ass USofA. No one should die for this country. It isn't fuckin worth it.
Those of you who think I am a terrorist sympathiser, ask yourself this? If bin laden had bombed the RIAA and MPAA headquarters would you have been as upset as you were on 9/11?
The world looked at the WTC and saw the same corporate conglomerate bullshit I see when I look at the DMCA. Bin Laden is an evil man, who chose a sorry ass way of expressing himself, but he had a good point.
Oh, and if you are the FBI, FUCKOFF. I ain't gonna hurt nobody. Why don't you go bust some 11 year old for drawing stick figures of her teachers with arrows flying at them on the back of a quiz on which she got a D. That's what I'm most afraid of. Please please save us from teh fucking 11 year olds. please I'm so afraid of her drawing!!!!
fucking coward ass country full of chickenshits that don't deserver to have brave soldiers sacrificing their lives for them.
Senator hollins can go to afghanistan, survive a week and maybe then I'll respect his sorry ass right to breathe. Until then I'll continue to hope him and this judge and all the other fucked up greedy assholes die a slow miserable death. FUCKHEADS!
which are:
Rebel, Resist, and Revolt.
:-)
War is peace.
Slavery is freedom.
Ignorance is strength.
20 January 2017: the End of an Error.
i wish you posted unanonymously cause i'd have added you to my 'friends' list.
unfortunately, i actually FEAR for my life since i hold similiar opinions and have underground political affiliation. and no, i'm not one of the bomb strapping youth who want to blow themselves up for some cause. but governments tend to demonize groups which don't agree w/ them, and the media will jump on it as well if it's not pro-capitalism/corporations.
>So, if students got voting rights, they would
>actually have to listen to students, and that is
>obviously quite scary.
Young, educated people participating in democratic processes scares who? Why?
-fb Everything not expressly forbidden is now mandatory.
The EFF should have argued that congress does not have the power to enact the DMCA. The constitution intentionally limited congress's power to grant copyrights. Why doesn't the EFF argue this point?
Please, learn the proper English plural of the word 'virus.'
There's no need to be making up words in hopes of sounding smarter. You only end up looking silly.
The DMCA makes it a crime to decrypt (or for that matter even discuss decryption) of encrypted, copyrighted works even if your use of these would be (for) non-infringing (legal) purposes. Now, this clueless judge comes out and says that the DMCA notwithstanding, it's still possible to use these encrypted works for the (non-infringing) purpose of fair use. HOW???????????????? If it's a crime to decrypt these for ANY reason, how do I then GET the use of them for fair use? I mean the copyright holder encrypted them to KEEP ME from using them; he's not going to give them to me. Maybe I'm a moron, but this judge's logic doesn't seem to be there!
I think a large percentage of Slashdotters need to go back to an elementary civics class. You don't have to be a lawyer to understand this, just have some common sense and engage the brains you guys are always going on and on about.
When the judge denies a motion to dismiss, it doesn't mean bad news for Elcomsoft, other than the fact that their legal bills are going to be greater than they were (which is not the court's problem and shouldn't be considered by the judge at all). What it means is that the judge did not agree with Elcomsoft's attorneys' argument that the issue at stake was either directly addressed by some previous court decision or pre-existing law. So this means the judget thinks there is an issue here that hasn't been decided.
It does not mean that the judge has anything against Elcomsoft or that he has made a pre-emptive decision against them. It only means he thinks there's an issue here. It could very well be that the judge is an activist who sees this is as an opportunity to inject his opinion on the matter into the fray. That opinion might be even be in favor of Elcomsoft.
Please take a moment to dredge up long-buried memories of how the judicial system works in this country. Or crack a book that doesn't have an animal on the front cover once in a while.
http://www.zeropaid.com/news/articles/auto/0509200 2b.php