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

2600 cant get no respect

[checkitout]

I think a large part of the reason it wasn't allowed for appeal was the great number of protests and courtroom hijinx 2600 brought with them. Its like being the class clown, teachers aren't going to give many favors and would rather send you to the principals office than deal with you directly.

Re:2600 cant get no respect

[Seth Finkelstein]

The "image" battle was a problem way before the appeal level. In the original ruling, the court said:

In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.

Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.

Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.

Judge Kaplan wasn't exactly shy about his views, no sirreee bob ...

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

Re:2600 cant get no respect

[Alsee]

a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.

My response to the dopey judge:

Now we are all elitist too?

We believe that information should be available without charge to any dooling idiot who bought it.

I'll have to add that to the list - We're all elitist greedy selfish thieves with ulterior motives. Expecially those evil librarians, evil journalists, and evil scientists.

-

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.

Re:Is this any surprise?

[eyegor]

My car is capable of going over a hundred miles an hour. I can also use it to run over hapless pedestrians. Yet I do neither (at least not on purpose)

I own guns. I'm capable of all sorts of mischief. I choose not to.

I own a baseball bat. I don't attack people with it. Sometimes I even hit baseballs with it.

Decss is a nice tool that I can use to store my favorite DVD on my laptop and watch it when I'm on travel without dragging a bunch of extra stuff around. I don't steal movies on DVD... I certainly could, I chose not to.

Just because you can use a tool that has a legitmate purpose to break the law doesn't mean you will do so.

Plus, who has time to download some sucky dvd rip anyway? Life's too short, I'd rather plunk down the $20 or so and have a nice library. It's retarded to spend all that time stealing a movie then pay big bucks for a writable DVD.

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

What a bunch of morons!

[GuNgA-DiN]

It is a really good thing that the court has protected the movie studios by stopping people from linking to DeCSS!. I mean what kind of chaos could ensue if people could link to and find a copy of this evil program? I mean even companies like Disney would go out of business if people kept distributing this program! I am so glad that linking to DeCSS is a crime! I feel much safer now.

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.

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: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.

Re:Errr. . . . Civil disobediance

[erroneus]

Some people see the fight against the DMCA as a fight to let us copy video and audio in ways that we want. In some respects that's true, but for some it's a lot more.

The DMCA is offensive because of the submersed way it was passed. Recall the stories about the method applied. The voting was held in a dubious way at a dubious time if I recall correctly. This is law that never had due process. While there was a little bit of mention about it prior to it being passed into law, the DMCA was passed very quickly and very quietly. There are enough people pissed off about that to disallow that tactic from being used again for a while. We should be fighting against that tactic but you have to get legislators prepared to fight that for you... there is no other way.

The DMCA was law written in the interest of one group only. The public's interest wasn't even a little-bit considered. It was already illegal to copy copyrighted works. We didn't need new law to make it 'more' illegal. It was written so that it could be a weapon against due process against the people who are less capable of affording good legal defense. In effect, it gave the entertainment interests "first strike nuclear capability" against anyone they want without good due process involved. The DMCA isn't about making anything 'more' illegal, it's a weapon. Since when should law be a weapon?

Finally, since this is a weapon in the interests of the entertainment media, getting the public's attention will be pretty much impossible without major events. Most people still don't know what Macrovision is and just think there's something wrong with their VCR. (Admittedly, I didn't know what it was either until I bought my first DVD player. Since I have an inexpensive TV and an inexpensive VCR, the only obvious way to hook my DVD player up was through my VCR's inputs... but for some mysterious reason it was all scrambled... most people usually stop there, but I'm a geek -- it's still a rare breed -- which is where my story kinda begins.)

The DMCA and future 'technology law' seek to restrict knowledge and the ability to tweak, tinker and research. This takes such knowledge out of the hands of the hobbyist almost entirely. The ability for me to hack on things on my kitchen table... to learn about the world on any level of my choosing is a very fundamental restriction. The restriction of information and knowledge... just the thought of it frightens me. Speech is just the way knowledge is conveyed. There are things that 'they don't want you to know or even know about!' That's a big problem.

I find it disturbing when there is software installed on my machine doing something I don't want it to do and didn't know was there. That's usually called a virus or a trojan. Now it's also called "spyware" and "ad engines." I'm not alone in that. I find it disturbing when law is passed without public notice, attention or heed... our legislators just looked the other way allowing the first of many up-an-coming measures to begin. Again, disturbing.

And finally, again as the DMCA and similar laws being attemptd are in the interest of the parties controlling the media, it's not likely that any small events will get public attention. If you need a visual, imagine a cute little cartoon boa contrictor surrounding us. It's cute, funny, interesting, colorful... but that's always the approach of this predator. And when we can't get out, they constrict until we can't breathe.

Changes in the way our government runs is no accident. It was predicted and it is happening now. Public opinion is that we do not own our country -- our government does -- and anything happening that we don't like; there's nothing we can do about it.

I resent being called a 'troll.' The point I'm making is that the public's attention isn't being raised and that's no accident. The 9-11 event was not just a 'terrorist act.' It was a very significant "PR" move to get attention. There is a problem with what's going on over there in those distant lands. People never really knew about it before then. Sometimes, that's just what it takes to get their attention. People still don't know why it happened but more people know now than did before. Likewise, people still don't know the value of what's going on here. Right now, the DMCA is only bothering a 'few' individuals and we have 'Larry Flynt' [2600] fighting our battles for us. In the same way people had a difficult time getting behind 'porn' people are having some problem getting behind 'hackers.'

Our Reality is our perception and since the media is our perception, they control our reality.

Funny....

[wowbagger]

Funny, in one court case the defendant repeatedly played games with the court, pissed the judge off, submitted faked evidence, and when the judge expressed his opinion, he was removed from the case and a new judge assigned.

In another court case, the defendand repeatedly played games with the court, pissed the judge off, and didn't submit faked evidence, and when the judge expressed his opinion, he was upheld on appeal.

Funny, that.