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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.
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.
For one they do business here in the U.S. which makes them liable to comply with all pertinet U.S. Laws and Regulations. This is nothing new - U.S. company's are also held by the laws of foreign governments when they do business there. The classic example I can think of is a few years ago (1998?) compuserve was forced by the German government to filter out some types of websites (nazi, some porn, etc) that it deemed harmful. Now, obviously, that would be in direct conflict with the U.S. 1st ammendment but it was on German soil which means the German government can do whatever they want to a U.S. company and make them obey whatever laws. You can substitute whatever company/country into that situation but the basic premise is the same.
It is also much like the fact that you must, as a U.S. citizen traveling/living/studying/working abroad, obey the laws of the country that you staying in. Remember 5 or so years back when those 2 american teenagers where flogged in Singapore (truly a happy place to live...) for grafiti and people raised such an uproar? Well the U.S. government didn't do anything - it was quite legal and proper for Singapore to enforce it laws upon them.
Sig: What Happened To The Censorware Project (censorware.org)
A quick URL to the donation page: here.
There are levels of distinction and laws which forbid certain types of speech. In general, "personal" speech (non-commercial) enjoys more Constitutional protection than commercial speech. For example, it is illegal for companies to misrepresent or lie about their products. There are laws about what descriptive phrases or words can appear on product labels (i.e. "low-fat", "fat-free").
Even personal speech is not protected 100%. Libel, slander, harassment, assault, death threats, etc. are all illegal, and the First Amendment does not protect them. Other things and actions which could be defined as "forms of expression" (I use the term loosely) like child pornography and public nudity can also be made illegal, and are not considered protected.
That said, I disagree with most of the judge's arguments here. Especially the part about "fair use" not being interfered with because it is still "possible" to excercise fair-use rights, it's just harder. *That* is a slippery slope indeed. You could argue that, because it is theoretically possible to take a random clump of matter and rearrange the subatomic particles contained within it to form an exact duplicate of a "protected" work, it is perfectly all right to do away with every other concievable method of duplicating said work for fair use. Sure, it's more difficult to construct a duplicate from the subatomic level, but hey, it's still *possible*, right?
As for the whole IP market...what all of this boils down to is that companies who make their living "selling" intellectual property are losing their control over the distribution. The trouble is, almost all IP is abstract. It's just a bunch of ideas. There is no physical component to sell. In theory, in a true free market, it would be impossible to sell ideas, because they are not limited resources. Yes, it is possible to run out of NEW ideas...but once an idea exists, it could, in theory, be distributed to every being on this planet with no limitations. Everyone can possess the same idea without taking it away from anyone else.
Those who sell IP have always relied on the fact that in order to spread those ideas reliably, a physical medium is neccesary...and since this physical medium is a limited resource, it can be sold. Books, music cassettes, VHS tapes...they are all physical, limited objects. If you have a book, you can't give it to your neighbor and keep reading it yourself at the same time...so if you both want to read it, you both have to buy a book. Duplicating the book yourself is certainly possible. You can memorize it, transcribe it, or even photocopy it. But these methods are all expensive in terms of time or money, and the results are not as reliable. IP merchants were able to use these physical limitations to exert control over the market and artificially inflate the price of their ideas.
The digital age, however, in one swift stroke, has destroyed that physical limitation which allowed IP to be sold like it was a limited physical resource. Now, suddenly, it is fast, easy, and cheap to take a single copy of an Intellectual Property and make hundreds, thousands, even millions of copies of it...copies that are indistinguishable from the original.
For humanity, this is a wonderful thing. Now ideas can be shared with millions of people at a tiny fraction of what it would cost a decade ago, with no need to worry about having to tie them up in artificial physical limitations. But for those companies who have been profiting for years on the artificial scarcity of IP in the physical world, it's an absolute nightmare. Their control is gone. Their entire business model is crashing and burning around them. That's why they are buying Congressmen and new laws like they're on clearance at Wal-Mart. They aren't concerned about this new world of almost limitless, extremely low-cost distribution of IP. They aren't apprehensive. They're freaking terrified.
The trouble is, all of these IP merchants are obsolete. They're outdated. They're not needed anymore...or won't be needed for much longer. They're going the way of the horsed carriage and the typewriter. Or, at least, they should be. But they're putting up one hell of a fight. They don't like this brave new world, so they're doing their damndest to reverse the progress we've made to reach this point. I don't think they will succeed in the long run. They can't undo what's been done, no matter how much money they throw at Congress and the lawmakers. Eventually, they will wither away and die, or adapt to the new environment. But I fear that they are going to make the transision as painful for everyone around them as they can before they do.
It's really unfortunate. Here, we have the ability to pass ideas in many formats (verbal, audible, visual) to a vast number of people at once at a relatively low cost. It's the next best thing to matter replication. But a few greedy corporations, trying desperately to hold on to a dying business model, are trying to destroy this ability, or at the least, to cripple it, reduce it to a fraction of it's current usefulness...all in the name of their own profit margins. Sad, sad times...
DennyK
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.
Yes, different types of speech are protected differently. Some things are deemed to have expressive value while also having a non-expresive component. I figured this out by reading legal briefs and court judgments.
There is a concept of something called "pure speech" which would probably encompass any written or recorded form of human language, but not necessarily computer code. Pure speech is the most protected form of speech, and the courts usually view political expression as the most important form of pure speech. Things like paintings are highly expressive, also, but probably not considered "pure speech." Gun shows have been defended on the basis of free speech. The idea is that gun shows have some expressive value, but they are certainly not pure speech. Burning the US flag is a political statement which has been ruled to be protected by the first ammendment. In the Viet Nam war era, a case arose where someone was arrested for wearing a shirt that said "Fuck the draft" into a court. Eventually it was ruled that this was protected expression.
Another important concept in free speech cases is whether a plaintiff's request seeks to impose a prior restraint. A prior restraint, for example, would be a case where a plaitiff tries to get a court to issue an injunction ahead of time to block the publication of some material. The courts take a VERY dim view of prior restraint on pure speech. On the other hand, libel and slander laws merely seek to hold speakers acountable AFTER they speak, and this doesn't run afoul of the first ammendment.
Believe it or not, judges are NOT idiots, and free speech is a concept they tend to understand fairly well. They may not always be technologically up to date, of course.
MM
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