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

Neither 2600 nor the EFF have skin in this game

[joneshenry]

This case is being lost because the movement headed by the EFF simply does not have the incentive to win it. The American judicial system did not become conservative just yesterday, it has always been so. Just in fairly recent American history the African Americans after centuries of reverses in the legal system were able to persuade the Supreme Court to grant relief. In this case the African Americans simply were interested in winning above all. So they did everything they could to put forward good upstanding representatives such as Rosa Parks and Dr. Martin Luther King, Jr. to represent the face of the movement.

In contrast let's face it, neither 2600 nor EFF are threatened with nonexistence should they lose this case. In fact they are benefitting. Every time the EFF loses a case the movement argues that the solution is to give them more money, this despite a rather suspicious history of the EFF actually being on the wrong side such as the first head of ICAAN being former head of the EFF Esther Dyson. I doubt that 2600 is hurting either from having their name prominently displayed on the Internet news outlets every few weeks.

In this era of dotcom meltdown and competition is it so unlikely that without this controversy 2600 would be threatened with going out of business? What information exactly does 2600 have that's exclusive to them or is even that interesting anymore?

In contrast to the naysayers I think it's pretty clear that the Supreme Court takes seriously the First Amendment, and that is the ONLY reason 2600 even has a chance of getting them to review the case. The Supreme Court has for example repeatedly struck down the attempts by the Federal Government to regulate obscenity on the Internet. The Supreme Court is serious about its duties, too bad 2600 is not.

Re:Neither 2600 nor the EFF have skin in this game

[rusty0101]

In contrast let's face it, neither 2600 nor EFF are threatened with nonexistence should they lose this case.

While this is not strictly about whether or not 2600, or EFF's existance is threatened, there is a prospective problem that has been raised by the case and the judgement.

The original story that 2600 carried was about how the author of a piece of software was being hassled by the legal system in his country. As the author had made public the software he had created, 2600 collected copies of the software and source code, and made them available on their website. Subsequently 2600 was enjoined through the courts by the MPAA to pull the software and source code from their web site. At that time 2600 published links to other web sites where the software was posted. These links were provided by readers of 2600 for the most part. In some cases the links were directly to the software, in other cases the links were to web pages where the software could be found. The appeal that has been lost at this time is 2600's appeal to be able to continue the practice of linking to other people's web sites with respect to the DeCSS software. After the Kaplan ruling 2600 posted a copy of the ruling, and advised readers that while they were not able to provide links to sites hosting DeCSS information, any interested parties could easily call find hundreds of such sites by typing DeCSS into the "GoTO" search engine, which is hosted by Disney, one of the petitioners in the case. So the judgement can be interpreted to read that the petitioners can tell you where to find this software, but the defendent is not allowed the same privledge.

I am aware that a lot of people are commenting that the DeCSS.exe program is a Windows program, so obviously it has nothing to do with Linux. In any effort to put together a tool for Linux, the author of parts of that tool, or package, needs to verify that the algorythims work. At the time the developer of DeCSS came up with the code that was ready to be tested, there was no way to read a DVD disk in Linux. (I may be wrong here, however this has been my interpretation of the arguments presented.) At the same time, DVD disks could be accessed in the Windows environment. The author did the logical thing, he compiled his algorythems into a Windows executable, with the necessary front end, and tested. It is this software that has been made available, and is found in the DeCSS.exe package.

On top of that, I have a hard time believing that the program would not run under Wine without any re-compiling, though I have not tested it.

The potential big problem this presents for the press is that Kaplan has set the precedent that if some media conglomerant decides that a story is detrimental to their situation, they can petition the courts to tell the periodical hosting that story how to present the relevant parts of the story. Theoretically if someone on /. finds out that there is a picture of one of the heads of the MPAA in a comprimizing situation, the MPAA can petition the courts to have /. rephrase the story so that it could read there is a picture of Mr. V in some compromising situation out on the internet now. Go to Google and serach for "mr. v compromising". and point back to the 2600 case as the precedent, and it will have been upheald by the Supreme Court.

Then again, IANAL, I could be wrong.

-Rusty

Below the sightline

[PotatoHead]

The media giants just want to keep DECSS underground. Given the intent of the ruling, it has failed. Anyone can find DECSS and the tools to play a DVD they just have to look. Thats the catch. Having to look means that no entity can make commercial use of it. This means that our average joe will not be using Linux to play any serious media.

Funny, I remember during the court proceedings commercial legal DVD players being announced and brought forward as evidence. Ever try to buy one of those? Know anyone that has?

Linux is not something centrally controlled, or closed for that matter. Lots of big players don't like the fact that there is really no way to buy or leverage their technology to gain control. Control is the pillar for most of their business models.

So rather than co-opt the system and compete for dollars, they would rather just not play.

The DMCA has shown its effects, and this ruling is a shining example of legal control where they have no other realistic means.

All of us slashdotters can and will be able to do what we want, but thats really it. If you think about it a little, that suits them perfectly. Most of the money is elsewhere.

The court is wrong on many counts

[smiff]

I have to question the first appeals court's competence in this case. They claimed that fair use remained intact because someone could use a video camera to copy part of a DVD. The court failed to realize that the image quality would be horrible, unless you used a tool to adjust the TV's frame rate. Such a tool would circumvent Macrovision. In other words, the court's recommended solution would require violating the exact same law!

Outlawing DeCSS today, would be like outlawing the photocopier in the 1970's, or outlawing home movie projectors at the turn of the 19th/20th century.

I am very disappointed that the court never addressed whether or not congress had the power to enact the anti-device provision in the first place. Forty-six law professors who specialize in intellectual property, claim that the anti-device provision is exactly the sort of thing that the constitution sought to avoid. The appeals court

1. Misinterpreted the brief as only applying to time limits, and
2. claimed that they did not have to rule on it because it was only mentioned in a footnote on the plantiff's appeal.

I am further disturbed by the court's ban on electronic footnotes. I still have the right to put a URL in a print publication, but if I put it on a web site, I can be thrown in jail. What's so special about the internet that my free speech rights don't apply?

Finally, the appeals court's prophecy that the internet will result in the viral spreading of movies and destruction of the movie industry is without merit. These predictions have been made with every single advancement in media technology, and with every single advancement they have been proven wrong. Even at the height of Napster, with a slumping economy, the record companies were making more money than the did before Napster started.

With this court ruling, it is illegal to make an open source DVD player. And it is impracticle for ordinary citizens to make their own improvements to a closed source DVD player. Why can't churches distribute a script that only plays an edited version of rated R movies? Answer: because I can't make a DVD player that supports this feature. This clearly does the exact opposite of promoting usefulness in the arts and sciences.

I live in a country where I have a constitutional right to publish directions on building a nuclear bomb, or publish a book on how to kill someone and get away with it. But I can be thrown in jail for telling someone how to make a tool that helps blind people read electronic books.

Re:The court is wrong on many counts

[konmaskisin]

Outlawing DeCSS today, would be like outlawing the photocopier in the 1970's, or outlawing home movie projectors at the turn of the 19th/20th century.

Except that in the case of movie projectors there was no incumbent industry opposed to the technology. Movies may have displaced vaudeville or live stage performances (plays) but the writers and performers in the previous industry were able to move over and increase their markets etc.

In the case of photocopiers publishers were only mildly threatened due to the huge quality, distribution and production advantages of commercial publication vs. photocopying. Over time, using existing copyright law and fair use provisions, an agreement between libraries and publishers over photocopying was worked out.

The current situation is one in which there is a huge and bloated "incumbent" industry fed by tax payer subsidies, dodgy accounting and monopolistic distribution channels (just read up a bit about the fun history of *war* between movie theatre chains in the 40s ... ), weighed down with a huge and inefficient management and production structure (unlike all other industries - from steel-making to the public sector - there has been no "downsizing" in Hollywood), awash in drugs, illegal money and scandal, It is an industry that is nonetheless IMMENSELY powerful, out of all proportion to its importance in the economy culture and society and with no concommitant sense of responsibilty. This is an industry where people snort coke to come up with a new twist on the "boy gets girl" story where psychos, bulemics, drug addicts, sexual predators (casting couch!), and alcoholics rule the roost and where vacuous idiots like Jack Valenti represent them in industry associations (what does Jack do and what does Jack know - he's a bag man with a rolodex with seemingly exclusive and special rights to determine public policy). They feel it is their god given right to STOP all innovation if need be - to shut down the Internet and prohibit the production of computers without copy management. In their own eyes they are GODS with the right to TOTALLY determine the development of technology and the very course of history itself.

I'd like an alternative industry or an earthquake to utterly crush Hollywood and its hangers-on (like Vivendi) but short of that I will ignore them and their products.

Dumping the imported overtaxed tea in the harbor in Boston was a good idea ... we need something with similar popular appeal.

Re:The Librarian of Congress

[Seth Finkelstein]

This, like many things you post about, has nothing to do with censorware.

That is incorrect. The original question concerned. Librarian of Congress exemptions. I am quite familiar with that topic, having played a role in establishing one of the only two DMCA exemptions granted. Those two exemptions were for obsoleteness and for censorware. I then quoted part of the actual text of the exemption to demonstrate how narrow was the exemption granted. I suppose I could have quoted the text for the obsoleteness exemption, but given a choice, why not use the relevant topic dear to my heart?

So you are mistaken, it was written in direct and accurate response to the original poster's question.

Of course, I talk about censorware a great deal. I've done much of the pioneering work on that topic. And if I may say so, I'm expert about it and familiar with the relevant legal issues surrounding it. And these legal issues strongly connect with the DMCA, per above.

I usually don't reply to personal attacks in these threads. But since you're not a troll, and it is arguably on-topic, I'll make an exception here.

Regarding going up against the DMCA myself, well, just how eager would you be to take legal risk in my place, given that Michael Sims has done actions such as What Happened To The Censorware Project (censorware.org) ? That's an extremely serious question. This isn't a game. It's not a silly flame-war. Note what this story is about - 2600 has lost at every LEGAL level, been outright flamed by the judge in the original case decision, and DeCSS cases have even had comments from Slashdot postings used against them. The smears you mention, have been against me. If I take too much legal risk, as sure as the other side has lawyers, it's all going to be in their court evidence. So I feel heavily constrained as to what I can do to fight the DMCA, in large part because I have to worry about a Slashdot editor who has already shown he's extremely willing to abuse power for revenge.

Maybe I'll get modded down for this, but it's late, and I'm tired. It's not a nice topic. But going to jail over the DMCA is far worse. And I didn't take any vow of silence about Michael Sims.

Kaplan was not stupid, he was bent

[nagora]

Kaplan used to work for Time-Warner and should therefore never have sat on the case as he had a history of friendship (or at the very least, a successful working relationship with the prosecution and had a history of personal dislike of the defence council, including advising people not to work for him.

The fact that Kaplan took the case shows that he was more interested in helping his friends and getting back at his enimies than in a fair trial.

The whole thing was a pantomime from beginning to end, but stupidity (or the law) had nothing to do with it.

TWW

Re:winux?

[el_nino]

The argument isn't that DeCSS isn't a circumvention device just because said circumvention is legal. The argument is that a tool shouldn't be illegal just because it can be used in illegally.

Yes, DeCSS is widely used for illegal purposes. So is Microsoft Windows. DeCSS could and can be used for legal purposes, and DeCSS equivalent code is used today by Linux DVD players for completely legal DVD playing.

Bottomline is that DeCSS was an easy target, 2600 got whacked for breaking the DMCA, and the content industry got some value for the money they bought the law with.

I'm just happy I live in a democracy, not a plutocracy, myself, and I can legally write a snippet of code and release it without having to worry about what others will use it for.