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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.
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
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-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Sig: What Happened To The Censorware Project (censorware.org)
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.
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
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.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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
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
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?
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.
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Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)