2600 Appeal Rejected

blankmange writes "Wired is reporting that 2600's appeal has been rejected by a federal appeals court. "The Second Circuit Court of Appeals said in a one-line ruling that it was not going to revisit an earlier decision in which 2600 was found to be unlawfully distributing a DVD-descrambling utility. In January 2000, eight movie studios sued the legendary hacker quarterly for posting the DeCSS.exe utility, which decodes DVDs and allows them to be viewed on a Linux computer." The magazine now has 90 days to file a Supreme Court appeal." The Appeals court did not have to take the case, and they didn't. 2600 can appeal to the Supreme Court, but they don't have to take the case either - it's looking more and more as though Kaplan's ruling will stand.

Comments

T-Shirts

[Penguinoflight]

ThinkGeek will sell you a decss t-shirt, and it's not tiny print either. I don't want to be trollish, but it's high time we got some competent judges, or at least another section of judges for tech cases.

Does anyone remember this....

[DragonPup]

Apparently descrambling DVD is encyption As bad as sabotaging airplanes to crash. Gives you a idea just how much of a clue these judges have to what these programs do.(Granted, this was pre-9/11, but still)

-Henry

My guess is the Supremes probably....

[apc]

won't grant certiorari (the appeal). Until the issue comes up again in another circuit, they won't see any reason to rule on it. The Supreme Court takes an incredibly small (about 100) number of cases a year, from the thousands and thousands which make it up to the (13) Circuit Courts of Appeals and (50+DC, PR, etc.) State Supreme Courts. Unless two courts in different parts of the country are in conflict, or the law is clear enough to rule on it now, it just won't be a priority for them-- and it takes 4 justices to decide to hear a case (out of 9).

In a sense, I'm not sure that if I were the EFF that I'd want this to be the case in front of the Supreme Court. Don't get me wrong, I've met Emmanuel Goldstein a couple of times and he's a great guy, but to the non-geek straight world he's a Bad Criminal Hacker, not a journalist. You generally would like to have a case with a more sympathetic client before taking it up to the Supreme Court, which is why the Princeton prof or the Russian programmer writing software for the blind would have been better for us. It's too bad for 2600 if it loses, but it's worse if it loses at the highest possible level and screws up a better chance down the road for the Supreme Court to see just how terrible this law can be. Contrary to popular belief, the Supreme Court doesn't reverse themselves all that often (and the most famous time they did-- Plessy v. Ferguson being overturned by Brown v. Board of Ed of Topeka, took 58 years).

(IAAL, but this is just a prediction. YMMV.)

HTML version of Kaplan ruling, Openlaw, OpenDVD

[Seth Finkelstein]

Before anyone mods this down as redundant, note the links given in the article above go to the official PDF versions of the Kaplan ruling. That's proper, but the following unofficial hyperlinked version is much easier to read:

http://eon.law.harvard.edu/openlaw/DVD/NY/trial/op . tml

This is part of Harvard's Openlaw site, which has an excellent OpenDVD section

Sig: What Happened To The Censorware Project (censorware.org)

Re:2600 cant get no respect

[Nogami_Saeko]

Want to know why they lost? I think this link pretty well explains it all:


The DMCA Is the Toast of D.C.


NOTICE the older-than-time, uppercrust DC politicians who are close to retirement, and need to pad their pockets with as much industry money as possible ("we'll pass ANYTHING for a price!").

SEE the big copyright holders wining and dining the aforementioned old politicians. Booze 'em up, then get them on board when they're tipsy.

EXPERIENCE the complete lack of anyone who has any opposing viewpoints.

Now, just for the record, I DO approve of copyright laws. That said, there NEEDS to be a fair use policy that allows users/owners to space/timeshift their information. Move it from DVD to HD to portable player without any restrictions other than making illegal copies.

The length of copyright terms needs to come WAY down if the studios/publishers want the kinds of control they are asking for.

Sure, make it an iron-clad copyright to protect all content without any space/timeshifting rights if you want - but if you, as a studio, DO want these rights, your copyright term drops to an absolute MAXIMUM of 5 years, after which it's opened up wide for all to see/shift/transfer as people see fit..

EFF en banc appeal

[smiff]

Here is the EFF's en banc appeal. This is what the court read before it declined to hear the appeal. The first appeals court said they could censor DeCSS due to its functionality. My favorite quote from the EFF brief:

But what computer programs say cannot be separated from what they do. Banning computer programs for what they enable computer users to do necessarily bans what computer scientists and programmers may say.

...Thus, even if the injunction targets only the nonspeech component, the effect on speech is identical. To aim at one is to aim at both.

And to whet your appetite, here is the introduction:

2600 Magazine hereby petitions for en banc review of the panel decision on the grounds that the decision makes new law that conflicts with governing United States Supreme Court and Second Circuit precedent in a case of exceptional importance.

The question in this case, one of first impression, is whether the Free Speech Clause of the First Amendment permits a district court to enjoin the publication on an Internet web site of a computer program ("DeCSS") that can be used to unscramble the content of digitally recorded movies, or the publication of hyperlinks to other web sites that publish that program, under the purported authority of a provision of the Digital Millennium Copyright Act ("DMCA") that bars "trafficking" in devices designed to circumvent technologies aimed at controlling access to copyrighted works. 17 U.S.C. 1201(a)(2). The panel upheld such an injunction based on the mere speculation that Internet distribution of DeCSS would cause copyright infringement, even though it is undisputed that there was no demonstration of actual harm.

In reaching this conclusion, the panel made two novel and unprecedented rulings regarding computer code and Internet publication that warrant this court's en banc review. The panel held that, although computer code is "speech" within the meaning of the First Amendment, it is subject to greater regulation than other speech because of its "functional capability" to be executed by a computer as well as read by a human eye. Slip op. 7515-16. The panel further opined that, although not a single incident of copyright infringement using DeCSS had been demonstrated in the district court, the injunction was adequately narrowly tailored to satisfy the First Amendment because the speed and scope of the Internet create the potential for such harm: "Posting DeCSS on the Appellants' web site makes it instantly available at the click of a mouse to any person in the world with access to the Internet." Slip op. 7522.

The panel decision conflicts with governing First Amendment precedent. Even assuming that the government interest furthered by such an injunction (preventing theft of intellectual property) is content-neutral, the injunction fails the heightened scrutiny required of content-neutral speech restrictions under Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I); and Turner Broadcasting v. FCC, 520 U.S. 180 (1997) (Turner II). A fortiori, the order below fails the especially heightened scrutiny required of content-neutral injunctions of speech under the Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994).

The panel decision further conflicts with governing precedent by treating the publication of computer code on the Internet as "functional" speech subject to diminished First Amendment protection. This creation of a new subcategory of less protected speech conflicts with Reno v. American Civil Liberties Union, 521 U.S. 844, 970 (1997)(ACLU I), which held that the Internet is a fully protected medium of speech and that regulation of speech on the Internet is subject to ordinary standards of First Amendment scrutiny. It likewise conflicts with City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994), which held that content-neutral prohibitions foreclosing the use of entire media "can suppress too much speech."

Even if the panel correctly upheld the ban on posting DeCSS, its decision upholding the ban on merely posting hyperlinks to other web sites posting DeCSS should be held independently unconstitutional under settled First Amendment principles of intent and causation set forth in Brandenburg v. Ohio, 395 U.S. 44 (1969), and Bartnicki v. Vopper, 121 S. Ct. 1753 (2001).

Because of these plain conflicts with governing precedent, the panel decision requires correction by this Court sitting en banc. The exceptional importance of the questions in this case is plain: computer code is a crucial part of our scientific and political discourse. Scientists, programmers and hobbyists publish computer code in textbooks, journals, popular magazines, and discussion groups Ñ both on the Internet and in print. Hyperlinks are one of the most easily understood and widely used form of computer code and, are, quite literally, the lifeblood of the Internet. As one court observed, "the ability to link from one computer to another, from one document to another across the Internet regardless of its status or physical location, is what makes the Web unique." ACLU v. Reno, 31 F.Supp. 2d 473, 483 (E.D. Pa. 1999), cert. granted 121 S.Ct. 1997 (U.S. May 21, 2001)(No. 00-1293) (ACLU II). The panel's unprecedented decision to relegate Internet transmission of computer code to second-class First Amendment citizenship plainly warrants the scrutiny of this entire Court.

Re:winux?

[Foogle]

According to the authors it was, as the previous poster suggested, written to allow DVD decoding under Linux. While it's true that the development was done under Windows first, they cited the lack of UDF filesystem drivers under Linux as the reasoning. As soon as those drivers were available, they ported DeCSS over.