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CA Supreme Court Saves LiViD, Pavlovich
joebeone writes "The California Supreme Court has suprisingly ruled that Matthew Pavlovich is not within their jurisdiction in the DVD-CCA's suit against his posting of DeCSS in relation to the development of the LiViD DVD player for open operating systems. What's surprising? It's surprising that they held that his posting of DeCSS was not actionable... (however the use of the program by users to circumvent CSS could be under the DMCA)."
I couldn't be happier to hear this. Congratulations to Pavlovich and his legal team.
This is another important step on the long road to overturning the DMCA.
Even Jesus hates listening to Creed.
I have heard lots and lots of this stuff for the US but what about Canada?
Can I play DVDs under Linux in Canada with LiViD legally?
On another topic that other law that was mentioned here last week I think it was, would help the use of the program in the US i think
What we see depends on mainly what we look for. -- John Lubbock Now search for that bug slave!
What does this mean exactly? That Posting DeCSS to the internet isn't bad enough to be sued or whatever? Or is it something more specific to this case, like his posting to the internet doesn't put him under the jurisdiction of Cali courts?
autopr0n is like, down and stuff.
I find it disgusting that the only legitatment DVD player for PCs is for Windows, and that there is no open source alternative, for those who don't wish to spend money for a bloated operating system that makes my purchases obsolete in a week's time.
So how are we to play DVDs in our *nix Operating systems? We're not, we're suppose to buy Windows, and shell out extra money for a DVD player. This makes a purchase of a DVD drive useless for an open source based PC.
I do believe that I have seen a CSS plug-in for Xine, is that also illegal? I really would like to watch my DVDs on my laptop when I'm on the road. But with out a proper CSS plug-in am I going to be breaking the law, every time I watch Fight Club?
Kids,
1.) Read this.
2.) Change the name from me to you, my senator to yours.
3.) Mail it in
4.) ??? 5.) Profit.
Karma: Not Particularly Funny.
On the other hand, maybe we should keep it quiet.
Whoops. Should have previewed.
Here it is
Karma: Not Particularly Funny.
Sometimes, there are some sane Californians.
My server is in CA, is yours?
their posting the DeCSS code which they use in their dvd player is legal, but because users using their dvd player are using DeCSS, their users are violating the DMCA, thus criminals?
that doesn't sound like much of a leap forward.
Is it just me, or does it seem like this whole lawsuit to stop DeCSS became a moot point the second the DeCSS code hit the net?
Once the code was published, Pandora's proverbial box was opened. They can never shove it out of view again.
Today, DeCSS based players abound aplenty. And there are rippers and other tools based around the code. Even if they win the case in court, they've lost in the court of real life.
Brought to you by Frobozz Magic Penguin Fodder.
JUDGE: Would that you could render this extermination unnecessary by renouncing this method of illegal decryption!
Pavlovich: No, Your Honor, it cannot be. I don't think much of our profession, but, contrasted with respectability, it is comparatively honest. No, Your Honor, I shall live and die a Pirate King.
(SONG -- PIRATE KING)
Pavlovich: Oh, better far to live and die
Under the flightless bird I fly,
Than play a corporate raider's part
With a pirate head and a pirate heart.
Away to the cheating world go you,
Where pirates all are well-to-do;
But I'll be true to the song I sing,
And live and die a Pirate King.
For I am a Pirate King!
And it is, it is a glorious thing
To be a Pirate King!
For I am a Pirate King!
SLASHDOTTERS:You are!
Hurrah for the Pirate King!
Pavlovich:And it is, it is a glorious thing
To be a Pirate King.
SLASHDOTTERS:It is!
Hurrah for the Pirate King!
(Inserted to avoid lameness filter.)
Hurrah for the Pirate King!
Pavlovich:When I sally forth to seek my prey
I help myself in a royal way.
I rip a few more flicks, it's true,
Than a well-bred hacker ought to do;
But many a hack with a first-class clone,
If he wants to call his warez his own,
Must manage somehow to get through
More lines of code than e'er I do,
For I am a Pirate King!
And it is, it is a glorious thing
To be a Pirate King!
For I am a Pirate King!
SLASHDOTTERS:You are!
Hurrah for the Pirate King!
Pavlovich:And it is, it is a glorious thing
To be a Pirate King.
SLASHDOTTERS:It is!
Hurrah for the Pirate King!
(the lameness filter, to avoid, inserted.)
Hurrah for the Pirate King!
(exeunt.)
Welley Corporation - SLM Scammers
While I always hate to see soem "bad guy" get off on a technicality, here's a case where one of the good guys squeaked by for similar reasons.
The key to winning the case was that Pavlovich did not know that DVD CCA is based out of California (until after they sued him), and because he did not know this, certain legal tests fail, and he cannot be pursued as the suit was filed.
Yes, there were many other deep, legal issues, but thisone appears to be the main reason.
Maybe he learned something from Bill Gates, who did a fabulous job during this legal battles to convince the judge that he could not remember a single thing. What lessons are our higher courts teaching us?! I thought learning from the past was a good thing, but apparently forgetting the past is much safer.
Yes, it's true. This man has no dick.
This is an unset area of law, based around the passage of a law surrounding a group of poorly-understood-by-the-general-populace and very new concepts. You will get inconsistent rulings on this subject, and will continue to do so for a very long time. Conservative judges, and corrupt judges with entertainment-industry links, will uphold the DMCA above and beyond the language in the DMCA itself. Liberal judges, and judges who actually understand the technical issues enough to see the DMCA is in fact about as direct a violation of constutional rights as you can get, will say the DMCA can't be enforced. None of this will be resolved until the supreme court picks up a DMCA case and strikes the DMCA down. (If the supremes uphold the DMCA, you will continue to get inconsistent rulings, as judges and juries alike look at the law, go "this is rediculous", and N-U-L-L-I-F-Y..)
First, the DMCA is of dubious constitutinality (that aspect has not been properly tested in courts).
Second, see the ruling... the ruling SUPPORTS the ability to create/distribute such software.
just distribute and talk about it. oops.
I am the Alpha and the Omega-3
There are DVD players for Linux. The problem arises when you realize the DVD consortium wants a license fee ($10,000, I think) for each type of "product" such as a software player.
In theory, someone could pay the $10K and release a closed-source plug-in for Ogle/MPlayer/Xine. However, I'm not sure if there are per-unit fees associated. There probably are and I don't think the consortium makes allowances for free software.
Learning HOW to think is more important than learning WHAT to think.
We need to be extremely careful moving forward. Challenging such things as DeCSS and DMCA with the term 'open source' leads, just as it did here, to the ideal that the open source community is simply a group of software pirates.
There must be a point made, whether by press release or otherwise, that Open Source does not in anyway support the copyright infringement of any commercially available (or, for that matter, freely available) software. We need to make it clear that we are not advocates of breaking the law, as this judgement seems to suggest.
However, saying that "I am not guilty of copyright infridgement because I work for the open source community" is not a valid arguement. This is probably why it has been associated with piracy. Again, we must make the difference clear to everyone so they don't get the wrong impression.
On a similar note, since the Judges of the court obviously do not understand what Open Source is and labeled "us" as "rogue software pirates", is there any legal action we can take against the court in a defamation of character suit? It's obvious they have just degraded us and our cause without a viable reason.
Welley Corporation - SLM Scammers
Personal jurisdictional is a constitutional question of due process, and governs whether a court may requires or permit a party to be joined in a legal action. Whether a court has personal jurisdiction is usually gauged by the party's contacts with the state, such as residence, committing significant acts there, consent to jurisdiction, and so on. If the court does not have jurisidiction, the case will be dismissed (at least as to that party) without addressing the merits of the lawsuit.
That's what happened here. The court was quite explicit in its conclusion which questions it was or was not deciding. It is interesting speculation whether this decision is mistaken, and where the plaintiff might next sue, if at all, so as to be assured of personal jurisdiction. It is also possible that the plaintiff dropped the ball and could have persuaded the California court on jurisdiction had it adduced more facts regarding the defendant's actions.
A parting caveat -- I just gave the opinion a power read and could be clueless on something important. However, the nature of the court's discussion is extremely familiar, and doesn't have a thing to do with DeCSS.
Unfortuneatly its a long way and it has not ruled that the use of DeCSS is legal.
My point is I paid for a DVD drive. I also paid to watch a movie unlimited times (hence the purchase of a DVD movie on a disc). However I am restricted at watching the movie legally, because I use an open source Operating System. With copy protection, we are slowly losing our rights as a group of consumers, for the interests of the movie industry that claims they have lost money. But their estimated profits for the year are just that, estimates. Piracy has been a blamed since the invention of video tape (in terms of video) for the industry not achieving these estimated figures.
What's the point of the suit? Is it to make sure the secrets of CSS stay locked away? May be part of it, but I doubt that's all.
More likely, they're trying to send a message to serve as an example and ward off future crack attempts. That, and $$. DeCSS was distributed freely ergo they're not collecting any licensing fees. From their point of view, someone has to pay.
- If we aren't supposed to eat animals, then why are they made out of meat? - Steven Wright
The court did NOT say that Pavlovich's posting wasn't actionable -- they said that he is not within the jurisdiction of the California courts. Pavlovich may yet have to go to court, just in a different state. Other people who post DeCSS may be within California's jurisdiction.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Now if NAV detects Open Office saved doc's as Viri, that's news
Karma: Not Particularly Funny.
On a similar note, since the Judges of the court obviously do not understand what Open Source is and labeled "us" as "rogue software pirates", is there any legal action we can take against the court in a defamation of character suit? It's obvious they have just degraded us and our cause without a viable reason.
:)
Er, where did you read that?
The judges would invoke their absolute immunity. This may seem unsporting, but imagine what would happen to the judicial decision if every losing party could tie the judge up in a lawsuit. Also, judges should be fearless in writing their opinions. That said, "rogue software pirates" is not very professional and suggests prejudice. Too much of that sometimes gets judges recused from further proceedings to avoid any "appearance of impropriety."
There -- much more than you wanted to know.
Civil Disobediance is rapidy becoming a moot point.
Throughout the paper, Samuelson assumes that the "New Economy" will be stifled by the "unpredictable, overbroad, inconsistent, and complex" anti-circumvention provisions of the DMCA. Clearly, Samuelson is trying to appeal to the economic interests of her to combat the restrictive nature of the DMCA. It can be seen, then, that in "Intellectual Property and the Digital Economy" Samuelson is positing a conflict between the interests of the "New Economy" and those of the "Old Economy", i.e., the media interests backing the DMCA
The problem with this approach is (of course) that the so-called "New Economy" is widely precieved at present to have been something of a bust, thanks mostly to the feeble state of the stock market, in particular the 60 per cent plus decline in the NASDAQ. Therefore, the "Old Economy" has a leg up in Samuelson's conflict of economic interests, which does not bode well for future instances of anti-copyright legislation.
Mr, Pavlovich has gotten off, as it were, on a technicality. Given the provisions of the DCMA, however, had he been a California resident, his fate may have been grim indeed, and given the advantages presently enjoyed by the "Old Economy" pro-copyright forces, it appears we will all have to deal with the DCMA for some time to come.
Disclaimer: IANAL, but I'll give you my legal opinions anyway. ;-)
While I am all for this decision, it seems the major benefit is that it places additional legal hurdles before DVD CCA. They have to sue each non-Californian web site individually, in the state where that site resides. My guess is that the biggest hassle here as far as the DVD CCA is concerned is that each state has different laws, and the plaintiffs would have to show that posting the material was illegal in the state where the web site resides. That not only shoots the legal costs up sharply, but then you also risk having web site operators in states where posting such material is entirely legal and protected. (Never mind federal laws such as the DMCA that might also apply to a case like this.)
Of course, maybe the DVD CCA could sue from another state that has more "liberal" policies on what is within its jurisdiction.
The decision does NOT seem to make any statements about the legality of reverse-engineering CSS, or writing code to implement the DeCSS algorithm, or distributing that code. The court did not find that distributing DeCSS was legal, but rather that under these specific circumstances, Californian courts are not the ones to decide this. Not that I would have expected a more sweeping opinion given the specific focus of the question before the court.
Bottom line: This is a roadblock for DVD CCA and organizations that are similarly evil, but it is far from a conclusive win or even a sweeping victory -- at least that's how it looks from here. Any people with more legal expertise care to add to or correct these thoughts?
I really like ogle! Command line or gui! Suh-weet!
http://www.dtek.chalmers.se/groups/dvd/
Or check out #ogle on irc.openprojects.net. They seem like really nice guys. I once mentioned to them it would be nice to be able to pass a command line option for full screen so I could make it stupid-easy for my wife and daughter to watch DVDs (you know... pushin 'f' is hard). They were very cool and said they'd add support in for that (CVS). I'm not sure if they've done it yet (I haven't checked), but their attitude towards my suggestion was very positive. Other projects are not nearly as cool about that (i.e. a player that starts with m).
It's a good app. It has no problems playing any of my DVDs (region 1 or 2). Cool.
3cx.org - A truly bad website.
What ruling did you read? The phrase "rouge software pirates" does not appear anywhere at all inside it. You better watch out, they may sue you for libel for making up that quote.
This case isn't about Open Source at all. All this ruling said is that CA was the wrong state to sue this defendant.
I looked it up: (http://www.dvdfourm.org) and there are NO per-unit fees. Buy book, sign the NDA ($10,000) and someone could legally release a binary-only DECSS plugin. Yes, it could be given away freely -- just no source.
Personally, I think RedHat, Lindows & the others should do this for the people who just want to play their movies without getting into religious debates over licenses.
Hell, $10,000 isn't lunch money if spread between SuSE, Mandrake, Red Hat, UnitedLinux, IBM, etc.
-Charles
Learning HOW to think is more important than learning WHAT to think.
For Windows, there's the full-featured FusionsSoft DVD Player which is described as published under the GPL license, but where is the source? The indicated home page of the project is constantly over its monthly bandwidth quota. The last version available seems to be from July, 2002, version 5.0.0.1.
The binaries for FusionSoft DVD Player can be found here. Gut again, since it's GPL, the sources should be somewhere. The program itself is multilingual, although you may have to do some german to download it and some french during the installation.
Trusted Computing FAQ | Free Dawit Isaak!
Nope. It just said creating/distributing such software outside of California doesn't violate Calfifornia law.
DVD CCA stood in the wrong line. They got California, they need to go see Indiana or Texas.
I skimmed the actual decision and the most disturbing fact is it was 4:3. There were three dissenters who wanted to rule the other way!
The decision came down to the vote of a single justice who chose the "right" side.
I'll let you draw your own comparisons to the US Supreme Court decision on the Bush vs Gore election of 2000.
Not according to DCMA:
(f ) Reverse Engineering.--(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
I am not a lawyer but it seems to me that the case should be thrown out.
"You helped our nation celebrate its bicentennial in 17 -- 1976." --George W. Bush, to Queen Elizabeth, Wash
Why indeed. Good question. I dunno. :)
This appears to be a small potatoes lawsuit. The plaintiff asked for an injunction and no money damages. Two theories: (1) the case likely did not meet the requirements for federal jurisdiction, which include like $75,000 in controversy or a federal statute that grants jurisdiction (I don't knoe how the DMCA is written on this point); or (2) state court is cheaper place to litigate, and this case was mostly symbolic anyway.
Livid was fully functioning as was DeCSS BEFORE nov 30th 1999.
DMCA does not cover software or hardware created BEFORE the begginning of 2000.
This is a fact.
DMCA will NEVER have any bearing on the original frozen sources of Nov 1999 Livid and livid is now "clean" of any tainting from the XING key anyways.
Current versions use brute force key cracking,a s do other DVD ripping source examples.
DMCA start date was a few months too late.
Too badfor DMCA but its a fact, the origianl aguments were NEVER about DMCA they were about theft of XING key using a debugger violating the click-wrap license.
The honorable Judge J. Baxter writes in dissent: ...
The record indicates that, by intentionally posting an unlicensed decryption code for the Content Scrambling System (CSS) on their Internet Web sites, defendant and his network of ``open source'' associates sought to undermine and defeat the very purposes of the licensed CSS encrytion technology
Wow! Makes free software sound like the mafia. (Those are his quotes around open source, btw.)
I think we (open source) have a major PR problem with the judiciary to address.
-- p
It's always easier to sue where you are than have to send your lawyers to live in a hotel room in a distant state for a month. This is why any business you deal with online has a TOS that includes a choice of law clause that picks the state they're in, which means they get that home state advantage.
Wrong story to post this, but we're all in the same boat. Kinda like the guy who goes on a cruise, and wakes up one morning to find a shackle on his ankle, and an oar poking in his window. Soon we'll all be defendants, guilty until proven guilty. Whee.
To reiterate the comments of previous /. members, this is not a win on substance, but on procedure. The Court outlines classic law school cases of personal jurisdiction. Personal jurisdiction is simply "does the defendant have enough contacts with the state for the court to have jurisdiction over them." One of the cases in law school casebooks is Zippo v. Zippo, where the court introduces a "sliding scale" of what level of interaction on the internet will meet the minimum level of contacts necessary to "avail himself of the forum's benefits." On one end, a simple ad does not amount to a minimum contact with the state. On the other end, "interactive" sites may be seen as meeting the "minimum contact." Accordingly, this case was properly decided in the "passive" site and does not meet the level of contacts prescribed by the courts. That's why the words that the Court uses, "The site only provided information; it did not solicit or transact any business and permitted no interactive exchange of information between its operators and visitors." is very important. It affirmed the Zippo v. Zippo ruling. To be honest, I'm surprised the Court of Appeals applied the verdict the way they did.
Again, as mentioned before me, this simply dismisses the case due to lack of personal jurisidction. It does not prevent the Plaintiff from trying again in TX. And worst of all, it doesn't prevent a huge company like the RIAA from suing in TX.
Well, actually that's different, that's venue. You can sue in federal court anywhere you want, subject to venue rules which like personal jurisdiction partly serve to prevent one party from unfairly inconveniencing the other by picking a random place to sue. Contracts frequently ask you to waive your venue and choice-of-law rights to litigate only in their neck of the woods. These clauses are not always enforceable.
Almost wherever you are, there's a handy federal court nearby, though certainly the state sysetems are larger. I think i saw somewhere that tha CA state system has more judges than the entire federal judiciary. That's part of why federal court limits is jurisdiction to more "significant" cases, along with $5 Social Security disputes...
A third reason might also be that plaintiff's lawyers were more experienced in state court, and so chose that forum. Unfortunately, CA could not reach the defendant, so they will be sending their lawyers somewhere if they bother to pursue this harassment lawsuit at all.
KISSING?! DANCING?!
/. right?
You do realize this is
The question that immediately springs to my mind is not about how affordable it is, but why the fuck should we have to? It's not enough that people are shelling out for physical DVD players and overpriced DVDs? Now we have to pay additional fees to actually play the purchased DVDs on the purchased players?
"If he thinks he can hide and run from the United States and our allies, he's sorely mistaken." Bush on bin Laden
Pavlovich lives in Texas. The DVD-CCA (the particular media-industry front organization prosecuting Pavlovich) sued him in California ("playing hardball" - forcing him into a more expensive long-distance defense), making a specious argument that "because he knew DeCSS would harm industries based in California," that state has jurisdiction.
The lower courts in California agreed. However, the quality of jurisprudence is fortunately a little higher in the California Supreme Court. They kicked it back. Now DVD-CCA will have to start over in another state (probably Texas, or potentially Illinois - where Pavlovich may have done some of the LiViD work while in school).
The case is far from over, in fact, it's just getting started, and it's anybody's guess what will come of it. One hopes one of these will find its way to the USSC while there's still a few shreds of dignity left at that bench; in which case, the DMCA would get the treatment it deserves. But it would depend on many things...
Specifically, with respect to the jurisdiction (which is an interesting, if academic, question), the California supremes held:
The exercise of jurisdiction over a nonresident defendant comports with these Constitutions "if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ' "traditional notions of fair play and substantial justice."
They go on to indicate their position:
According to DVD CCA, California should exercise jurisdiction over Pavlovich because he should have known that third parties may use the misappropriated code to illegally copy movies on DVD's and that licensees of the misappropriated technology resided in California. In other words, DVD CCA is asking this court to exercise jurisdiction over a defendant because he should have known that his conduct may harm--not a California plaintiff--but industries associated with that plaintiff. As a practical matter, such a ruling makes foreseeability of harm the sole basis for jurisdiction in contravention of controlling United States Supreme Court precedent. (See Burger King, supra, 471 U.S. at p. 474.)
Indeed, such a broad interpretation of the effects test would effectively eliminate the purposeful availment requirement in the intentional tort context for select plaintiffs.
[emphasis theirs]
Very simple, actually.
I expect the DVD-CCA's attorneys to get their law on ghetto-style; that means every nasty trick they can think of to rack up costs and price Pavlovich out of the fight. Home-court advantage has a nice synergy, too.
What I find interesting are the series of decisions supporting them which led up to this ruling. Perhaps one of the biggest weaknesses of the legal system is that there is no good way to handle bad judges once they get into the system.
Want to Know How to Cheat the GPL? Read On!
Former AG Edwin Meese said while in office that "if a person is innocent of a crime, then he is not a suspect," which to me is another way of saying suspects are always guilty. I doubt that our current AG Ashcroft is much different. I've had the good fortune to work with both prosecutors and courts, and while they were both very good at their work, they were not gods. One of the cases I reviewed involved a Chicago judge who apparently took a bribe to throw a murder case for the defendant, AND to screw his codefendant into taking the blame. Lovely. I felt very naive: I could picture taking a bribe to fix a traffic ticket, but a murder case? It could have been a death penalty situation. They were probably both guilty of the murder-for-hire of a drug dealer, but all this did seem a little unfair, and it scored the codefendant an oh-so-hard to get habeas corpus hearing. The state lawyers assigned to oppose his petition did a frighteningly bad job; the judge I wrote my memo for had to correct them on a basic point of law, sinking the rest of their case. Oh well.
:)
How's that for digression?
However, we do live in a pretty cool country (I'm assuming the U.S. here, though there are other nice places!) with lots of promise. It just takes a lot of minding so it doesn't get all run down.
If you aren't using to steal movies (or view stolen ones) then go do it anyway.
Two things:
First, there is no such thing as stealing a movie. It's information and its properties are governed by information physics, not classical physics. You can steal the DVD from a store, but all you're doing is stealing a piece of metal and plastic that carries a representation of the data that, when decoded, gives an approximation of the movie. (Remember mpeg2 is lossy.)
Second, if you're not using LiViD (or any other computer software for that matter) in a way that costs or could potentially cost the (RI|MP)AA money, they really don't care. Remember that when they buy congress or the president they do it so they'll make more money down the line. When they sue Joe Average because he's downloading movies online, it's not because he's costing them a large enough sum that it really matters. It's because they expect that if the case gets big publicity other downloaders will be scared away from filesharing programs. If nobody stopped downloading and sharing when the ??AA sued someone, it would cease to be worth their time and they would stop doing it -- but that's another matter.
The bottom line is, as long as you're only playing DVDs that you've bought legally (not ripping or sharing them), the ??AA doesn't care. Sure, they might be upset that you're using a free operating system or free software because people exposed to that community just might gain enough knowledge about how information works to figure out that their business model is outdated and needs to be changed, but I have no idea if they're even thinking on that level. To them, their business model is the right one, and people are costing them money by obtaining copies of movies online.
The first point is psychology, the second a factual reminder that the first point doesn't apply here.
:)
There is a natural reluctance to sympathize with criminal defendants we know nothing about; we want the state to be right about them, because the state protects us. I'm hardly immune to this. (A major exception is the Bronx, for which the "Bronx effect" was coined; the Bronx in known among lawyers for having a much higher acquittal rate than teh neighboring boroughs.
Before some idiot interprets that as a slur against the Bronx, please google "bronx effect."
Too bad I can't metamoderate my own stuff. I'd be honest, really.
Today's Sesame Street was brought to you by the number e.
Sounds good - but can I create my own distro of Linux and include/distribute the plugin? Something tells me I probably can't, because I wouldn't be the original purchaser of the license. This same idea seems to indicate that the major linux distros couldn't group together - they would probably each have to pay $10,000 to license a copy, and only they could distribute it (as soon as you copied your Mandrake and handed it to a friend, you would be breaking the license agreement)...
Reason is the Path to God - Anon
The ruling was 4-3 in favor of the defendant, which is as close as it can get -- and the majority went out of their way to show how narrowly this ruling should be interpreted.
The defendant, Pavlovich, had several things in his favor. The DVD CCA, which brought the suit, claiming that Pavlovich should have known that they would be harmed, didn't even exist when the DeCSS code went up on Pavlovich's web site. The MPAA claims that they sent a 'cease and desist' letter to Pavlovich, but can't find a record of that, so the judges ignored it. And, the CA Supreme court majority recognizes that the DVD CCA could very easily try the case in Texas, so it's no real loss to them to do so.
If any of those three conditions wouldn't have happened, this would likely have been tried in California. It was really really close.
thad
I love Mondays. On a Monday, anything is possible.
While I didn't read the entire DVD Forum specs, etc. I went through most of what is publically available.
In order to get the books with the specs, you must sign and NDA that you aren't going to share the info in the books.
They explicitly state that there are no per-unit royalties and once the NDA & book fees are paid, there is no more money to pay in.
The main focus is on hardware manufacturers -- they don't give a damn about copying software as they only make money from the NDA/License agreement.
So YES you could redistribute the BINARY code, just not the source. Source would violate the NDA. NVidia has already proved there is a Linux market for binary-only drivers. That is all this would be -- a binary plugin.
However, no one but the original licensee could use the official DVD logos -- that is part of the agreement. If you don't use the logos (and there is a FAQ question on that, but it deals with hardware), then all is cool.
Damn it! I need to hit a small lottery payout. I'd buy the darn license and pay whoever could write such a plugin a fee and release it as a freely redistributable binary. $10K isn't a lot to a company, but I don't have that laying around.
Learning HOW to think is more important than learning WHAT to think.
You don't. Someone (a company) needs to pay the one-time licensing fee to make it legal. Then freely distribute the binary-only plugin.
You, as a user, wouldn't pay an additional fee. There are no royalties with DVD formats, only what is on them.
Hmmm... I need to send a letter to SuSE, Sun and RedHat. They seem to want to push into the desktop market and this is a big sticking point.
Learning HOW to think is more important than learning WHAT to think.
Remarkably, the judges never mentioned any of the following key facts that should have completely changed the nature of the (original) proceedings:
- The DeCSS was already posted on hundreds of
web sites all over the world long before it was
posted on the LiViD site. Posting it on the
LiViD site cannot reasonably be claimed to have
had any substantial effect on anybody, beyond
minor convenience for LiViD developers.
-
Nobody has shown that the CSS was illegally
reverse-engineered. It's specifically allowed
to reverse-engineer in Norway despite any
contractual agreement. In any case there was no
contractual agreement, just a click-wrap button
which there is no evidence anybody clicked.
Once a trade secret is out, it's out, and anybody
is free to use it. DVDCCA likes to pretend, and
seems to have confused the judges into believing,
that something illegal occurred in Norway. The
worst anybody has come up with is that nobody
knows (despite what Norwegian law says)
what a Norwegian court would actually decide.
-
These judges insist that LiViD was "aimed at"
the movie and electronic industries, despite that
it has been explained that it was,rather, aimed
at benefiting legitimate owners of DVDs, who
have a Uniform Commercial Code right to watch
the movie they have bought. That some movie or
electronics companies might have been affected
was of no interest to the LiViD project.
-
Nobody has shown that these companies have been
affected in any way. Certainly lots of movies
are being released on DVDs, and lots of DVD
players are being sold.
I don't know whether to chalk up these omissions by the judges to malfeasance or incompetence. (Might as well assume both.:-)CA Supreme Court Saves LiViD, Pavlovich
ahh, LiViD... DVD player, I think...
The California Supreme Court has suprisingly ruled that Matthew Pavlovich is not within their jurisdiction
sounds interesting
in the DVD-CCA's
boo, DVD-CCA
suit against his posting of DeCSS
whoot, DeCSS
in relation to the development of the LiViD DVD player for open operating systems.
Wait, does this mean...
What's surprising? It's surprising that they held that his posting of DeCSS was not actionable...
Yes, yes, I think it means...
(however the use of the program by users to circumvent CSS could be under the DMCA)
Fuck. Alright, nevermind. Back to whatever you kids do.
This opinion really isn't very helpful. Others have pointed out that it only means the DVDCCA won't be able to sue in California, and that's correct so I'm not going to revisit the issue. However, there's a more important point that seems to be going unnoticed.
The Court went out of their way to note that it's only the DVDCCA that's being effected by the ruling; something that quite rightly should be done when the ruling is premised upon personal jurisdiction. In addition to saying that the DVDCCA probably can sue (just not in California), the opinion also says (although not quite as directly) that the movie studios probably could sue in California. And they could get not only Pavlovich, but pretty much anybody that posts DeCSS.
DVDCCA couldn't get jurisdiction because they couldn't prove that Pavlovich knew (or should have known) his actions might: 1.)hurt them, and 2.)hurt them in California. This is certainly right, as the DVDCCA didn't even exist as an entity when Pavlovich posted the code and they were never able to show that prior to the suit he had any idea where they were based. However, major movie studios in Hollywood did exist, and I doubt the Court would be willing to accept the notion that Pavlovich didn't know that Hollywood studios just happened to be located in Hollywood, CA. Had the plaintiff in the suit been a major studio (like Universal or Disney), you can bet the decision would have been the other way around.
Tuck
Tuck's Journal.
Case history:
- DVD CCA (Delaware corp w/HQ in CA) sues Matthew Pavlovich (individual in Iowa) for "misappropriating trade secrets" (DeCSS), and posting them on the LiVid website, seeking an injunction.
- MP files a motion contending CA has no jurisdiction.
- Appeals court overturns, and eventually gives a statement why the trial court should have jurisdiction.
- (This decision) CA Supreme Court decides the trial court doesn't have jurisdiction after all.
Summary of decision:- CA may exercise personal jurisdiction "if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ' "traditional notions of fair play and substantial justice" ' ".
- The "minimum contacts" test must be administered on a case-by-case basis -- it's not mechanical.
- There are three tests by which a court may exercise specific jurisdiction over a nonresident:
- the defendant purposefully availed of forum (CA) benefits;
- the controversy is related to the defendant's contacts with the forum;
- the assertion of jurisdiction comports with "fair play and substantial justice"
- It's not enough to show defendant knew his actions would cause harm in CA. Plaintiff has to establish that CA bears the brunt of the harm. There are several pages showing they don't.
- Pavlovich posted on a "Web site accessable to any person with Internet access. Pavlovich never worked in CA. He owned no property in CA, maintained no bank accounts in CA, and had no telephone listings in CA. Neither MP nor his company solicited or transacted any business in CA. The record also contains no evidence of any LiVid contacts with CA." The site was links only, no interactive features. There's no evidence that anyone in CA even visited. One interesting argument: he couldn't have known he'd be harming plaintiffs in CA since the DVD CCA were formed two months after the links went up.
- DVD CCA claims CA has jurisdiction because "he should have known that third parties may use the misappropriated code to illegally copy movies on DVDs and that licensees of the misappropriated technology resided in CA". [emphasis orig] Accepting this argument would lead to a ruling "in contravention of controlling US Supreme Court precedent". It would give CA jurisdiction over far too many tort cases.
- Nevertheless, "DVD CCA has the ability and resources to pursue Pavlovich in another forum such as Indiana or Texas. Our decision today does not foreclose it from doing so. Pavlovich may still face the music -- just not in CA."
Justices Brown, Kennard, Werdegar, and Moreno voted to overturn, Justices Baxter, George, and Chin dissented.This post expresses my opinion, not that of my employer. And yes, IAAL.
Before long, you'll see...necking!
May we never see th
"to a lesser extent strength"
??
For their size, ants are one of the strongest creatures on the planet.
Yes, but that's not the point I was trying to get across. We don't all have to be Hercules to make a difference if we _all_ are shooting for the same goal. Strength can be important, but "to a lesser extent" than sheer numbers and tenacity.
You are partially right. The $10,000 you mention is for the DVD-Forum specifications. These do not have anything to do with CSS. No where in the specs do they mentions CSS except to note the inclusion of encryption bits in the PES packet headers and some CGMS bits in the IFOs. To license CSS requires going through DVDCCA which is a much higher dollar investment. It also doesn't have per unit royalties associated with players (there are per unit royalties on css encrypted discs, however), but the one time fees for getting CSS licensing for a player are in the area of $1 million last I heard. This is put in escrow/trust, so it isn't money spent so much as money you may lose if you fail to meet the licensing requirements, i.e. your keys are in plaintext in the app someplace.
Many companies have invested in linux DVD player software development, but few have released publicly or have wide use bases. None are free as there are per unit royalities associated with ac-3 and mpeg-2 decoding (Dolby and MPEGLA collecting, respectively).
So it isn't as simple as RedHat and others dropping some money in a bucket. Companies are afraid of their software getting hacked, losing their shirts due to piracy of the non-free software, running into myriad problems with driver and hardware support which they tolerate in Windows (because of the market and OEM demand), having to deal with frequent kernel version changes (thus potential kernel module issues), and in also having to support their product on a historically "difficult" to use and administer OS.
Even more than that. Civil disobedience means that you explicitly break a law that you consider wrong, and do so in public or with a maximum of publicity and turn yourself in. The point is you want everyone to know that you broke the law because you consider it wrong, because you want it changed. This means you are ready to accept any actions (prison, etc.) on the authorities part.
Read some books about Gandhi to understand how the principle works.
Idempotent operation: Like MS software, wether you run it once or often, that doesn't make it any better.
This ruling may have a profound effect on the PanIP Case. Basically, this ruling prevents a litigant from dragging a defendant to California in order to defend themselves unless the defendant does something specifically to smite a specific entity in California:
"Thus, the purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction soleley as aresult of 'random', 'fortuitous', or 'attenuated' contacts, or of the 'unilateral activity of another party or person'."
To me, this means basically that if you only have random, casual contact with California, then you can't be dragged over there to defend yourself in a case.
I find it interesting that there are many places in this ruling that show a "[Citation]" where the judges obviously meant to insert citations, but forgot. I hope that doesn't open this ruling up for challenge - maybe it's just a draft...
So, the PanIP defendants can't be required to come to California to defend their cases. This should make it much harder for PanIP and cheaper for the defendants. If I were the PanIP defense lawyers, I'd be all over this like flies on... well.. you know..
Then again, IANAL, so I could be completely wrong on this..
I'm writing an open source DVD Player for my project at university (I'll post the code up somewhere sometime in the future). Now although the DeCSS stuff is really hampering in the US, it seems like in Europe there is nothing to stop us developing open source players. I trawled through all sorts of law cases and the only one's were from the US.
Talk about the poopy end of the stick...
$ Stu --help
I think Znork said it best:
:) ) language and unpopular (though more importantly poorly argued) opinion.
Calling copyright violations theft _is_ a wordgame.
Anyway, I see your point - that the dictionary definition of "stealing" and the information age definition of stealing (the one that takes into account the difference between physical property and intellectual property) are not the same. I also realize that this is probably a troll, considering your vitriolic (hah! I'm going to make you look that one up yourself.
However, considering others could read my original post and come to the same conclusion you did, I think I should explain myself a little bit better. What I was getting at was this:
Information and physical objects have different properties and cannot be treated the same way. Here's an example using two statements. Someone who "sorta" gets the difference between information and physical objects would say something like the following:
If someone you know has a music cd that both of you enjoy, you can make a copy of that cd and get the benefits of ownership of that music without depriving your friend of the same. If someone you know has a car that you like, you cannot obtain ownership of it without depriving your friend of the same, assuming of course you can't go out and buy one.
Someone who really understands the difference between information and physical objects would say the following:
If someone you know has a music cd, a piece of digital media, which is arranged in such a way that a machine can read it and reproduce a song that both of you enjoy, you can make a copy of that information onto another piece of digital (or even analog) media and get the benefits of ownership of media arranged in such a way that it represents identical information without depriving your friend of the same. If someone you know has a car that you like, you cannot obtain ownership of it without depriving your friend of the same, assuming of course you can't go out and buy one.
Hear the difference? It's all about 1984. In 1984, those charged with the responsibility of creating newspeak (the language that everyone will eventually use) are primarily concerned with cutting down the number of words available and squishing meanings together such that it would be impossible to express certain ideas. For example, "good" means both "good" as we understand the word today, and "in keeping with the views of the goverment". Saying, "The government is good," would be like saying, "A cat is a cat." -- a pretty obvious statement. Conversely, saying "I am not in keeping with the views of the government," would mean, "I am bad," or in newspeak, "I am ungood." It would be impossible to verbalize disagreement with the government without expressing to others what a distasteful person you must be.
Notice how the example person that doesn't really understand, on a deep level, the difference between information and physical objects squishes the concept of information and the media that represents it by its internal arragement of matter together, while the example person who really understands is able to separate the two. This is what I was talking about. Melded meanings and incorrect inferences impede communication. In fact, you read my statement (First, there is no such thing as stealing a movie.) and took it to mean that it's my opinion that because copying a movie is not stealing a movie, copying a movie is not wrong.
Now, please. Don't try to rationalize [m-w.com] your actions with these egregious [m-w.com] claims, it's just ridiculous [m-w.com] and pedantic [m-w.com]. Just call a spade [m-w.com] a spade [m-w.com].
Rationalize my actions? Who ever said that I copy movies, anyway?
Whether or not copying a movie is wrong is a different and much larger debate. Whether or not information and physical objects can be treated the same way is not. It's a fundamental fact that they can't.
One of the judges contentions was that it was a passive, non-interactive web site, therefore just a posting of info.
:)
Good thing it didn't have a flash interface or anything fancy to make it more interactive
Too badfor DMCA but its a fact, the origianl aguments were NEVER about DMCA they were about theft of XING key using a debugger violating the click-wrap license.
... nowhere else is the act of clicking on a button, or unwrapping celephane packaging, considered the same as signing a contract and agreeing to additional limitations on one's freedom to use their property above and beyond copyright, which is what clickwarp licenses are all about.
Click wrap licenses only have validity in states which have passed UCITA (some hick southern state and one of the tiny New England ones, if I recall correctly)
Furthermore, no one took the XING key away from XING (perhaps the DVD-CSS folks did, but if so, then it was they, not the LiViD folks, who committed theft), at most they copied it (and it appears they copied it legally, irrespective of what an unenforcable clickwrap license might claim).
There was no "theft" of the XING key ever involved, and it would behoove you to stop using Copyright and Media Cartelspeak when discussing these issues if you have any interest in maintaining your ability to think about any of these issues in a clear and unbiased fashion.
Copyright violation is not theft. Reverse engineering software you own legally to see how it works is not theft. Uncovering someone's trade secrets using the data they have provided you (such as an encryption key) is not theft.
Some of these things are illegal, particularly since the corrupt imbecels in congress passed the woefully misguided DMCA, but none of them are theft, either under the law, or according to any mainstream, non-Cartel definition of the word.
The Future of Human Evolution: Autonomy
However, I still think they would justify the fees in other ways: What if my "distro" was on a bootable CF card, and all the distro contained was the system, the binary CSS bit, and some DVD playback software? Basically, what you would be distributing is a bootable drive (could even be a CD to be popped into the DVD drive once and loaded into RAM) for a DVD playback machine - essentially a mostly "open source" DVD player? Heck, why couldn't I just get a mini-itx board, some custom cases, the distro - and sell ultra-low cost "open source" DVD players (of course, it would be hard to sell for less than a $50.00 Apex - but that isn't the point)? Would they still "not care"?
Something tells me they would - especially once you started adding ripping/archival functionality (which should be perfectly legal - think home DVD server appliance)...
Reason is the Path to God - Anon
So what this ruling means is that the DVD-CCA shysters (and hopefully maybe MPAA and RIAA) will be having to travel to where the offending server is geographically located in order to sue someone?
Hey, anybody out there from Baghdad who wanting to host a copy of DeCSS? The USofA would not dare bomb its own lawyers!
This is a footnote, which I'm sure no one will ever read(!), but when I said not all contract clause specifying where disputes will be litigated are valid, I did have a procedural concern in mind -- the contract can't confer jurisdiction on an improper court, although it does at least suggest consent to be sued there. (The contract couldn't perversely choose Guam as the forum for a New York dispute.) The same goes for choice of law, which governs the different issue of whose law governs rather than where the trial is held. For example, in some cases New York law might be applied to a question tried in a California court. These clauses too are subject to tests for reasonableness.
:)
:)
And on top of this are the contract and public policy questions of whether the agreement was intelligently entered into, and whether it comports with a certain minimum of justice. Contracts 101.
Blah blah blah. Just trying to persuade folks that lawyers do deal with complicated stuff while charging all that money.
Why is this case important, and why should you care about personal jurisdiction? The case here was straight jurisidiction; the defendant's lawyer(s) placed his interests first, as they were obliged to, and immediately went after the jurisdiction problem, even if they preferred to address the merits and build some precedent for "the cause." All the same, this decision is important to geeks because it says that if you post something on the internet, you can't necessarily be sued in any jurisdiction in the country, indeed as some point your contacts with the court jurisdiction may be so weak that trying the case there violated the 5th A due process clause and/or state constitution. At least that's the rule in California.
Of course I could be entirely wrong; this is not the practice of law; YMMV. -- required disclaimer
The thing I don't get is why nobody has argued that DeCCS isn't actionable under the DMCA.
(The argument goes something like this...)
Everything I have read about the DMCA paraphrases into a statement that people "may not traffic (etc, blah blah blah) effective (blah) prevent copying".
A smartalek may harp on "effective" but I would like to harp on "prevent copying."
The CCS system does absolutely nothing to "prevent copying" what so ever. It singularly and only complicates viewing. The data stream itself before and after a DeCCS run is equally copyable. Therefore it is not, reguardless of the intent, a "copy protection mechanisim" AT ALL.
It is intended as a porely implemented use-limiter.
This is directly analogous to using a password to encrypt a zip archive. This does nothing to limit or control the copying of the archive. It does work to limit how the possesser of the archive can access it. And it does so reguardless of whether the possesser came into that possession through clear entitlement or agregous breach of security or ethics.
the CCS system uniformly restricts the usage of the data reguardless of whether the data is possess via clear entitlement (you have the DVD in the drive), transitive entitlement (you have the DVD in its jewel case and the image on your hard drive) or agregous breach (you just downloaded the image from a movie-warze site).
So it is not a "copy protection" technology at all.
Someone needs to make that point in a court of law.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press