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Sklyarov Discusses the ElcomSoft Trial
DaytonCIM writes "Dmitry Sklyarov talks openly about the ElcomSoft trial to CNET News. The 'Russian programmer thinks it was unfair of prosecutors to play his videotaped deposition at the ElcomSoft trial rather than calling him to the stand.'"
whether a video tape is played, or he is called to the stand to say the samething? He couldn't change what he said since he was under oath, so it seems the same.
Video someone before the trial, edit the tape, and play that back in court...and with no intention of letting him stand up and defend himself?
Sounds like someing you'd hear about in a _really_ backwards country somewhere...
Chaos, panic, disorder...my work here is done.
They can't compel him to testify, so why ask him to? It would have wasted everyones time to call him to the stand.
If he had something to say his lawyers would call him to the stand in rebuttal to the prosecution.
No... it's spelled S k l y a r o v.
Thanks for playing.
Skylarov is a citizen!
YOU testify for the VIDEO TAPE
in US
the VIDEO TAPE testifies for YOU
Not offering you a chance to change your testimony after the fact!
...how did they settle the jurisdictional questions? I mean, last I heard, Skylarov was working in Russia. One assumes the US government just did it by fiat, or was there more diplomacy involved than what I'm led to believe?
If the US just went ahead and did it anyway, that's kind of a scary precedent, meaning that now, no matter where you are in the world, the long arm of US law enforcement can come after you for doing something it doesn't happen to like? If that's the case, as sort of a quid pro quo, I would like some of the priveleges of US citizenship to go along with the burdens.
I'm not a geek, I'm just a clever script.
I honestly expected Sklyarov to humbly search for all those people who might be exploiting his software.
"I don't know who pirated, but I'm gonna get them for improperly using my software"
At least until he got back to mother Russia.
Hey, it worked for OJ.
-S
We Apprentice Developers and Designers
The US Constitution says that you have the right to own a gun. A tool with but one purpose and that is to kill. Killing is illegal - but you write a piece of software that could potentially be used to pirate something but has several other good purposes and they throw you in jail. I will never underestimate the stupidity of american lawmakers.
If you want to know more about this case, ElcomSoft, or Dmitry Sklyarov, EFF.com has a great FAQ. Check it out here.
Doesn't matter. His name only has an exact cyrilic spelling. Anything written in the roman alphabet is simply an approximation.
Your pizza just the way you ought to have it.
Why was he forced to accept the prosecution doing this? Couldn't he have literally forced his way into the courtroom if he really wanted?
Before everybody gets up in arms about this great injustice, let's have a brief look at the facts*, shall we?
That means he knew they could use the deposition in court, and chose to give it anyway
That means that the prosecutor couldn't call him to the stand, even if he wanted to
Unless I'm missing something here, the system worked exactly as it was supposed to. If Dmitri wanted to testify, his lawyer, the defense attorney, could have called him to the stand; that he didn't indicates that he (the lawyer) felt that putting him on the stand, where he'd be subject to cross-examination by the prosecution, would be more harmful to the case than allowing his deposition to go unexplained.
Given the outcome of the case, I'd have to agree.
IANAL.
(*Yes, I know, facts, on Slashdot. It's so crazy it just might work!)
Moderate drunk! It's more fun that way!
He said if someone came to him with another project focused on cracking copyrights, "I would ask you, if you're sure this is legal." If the answer is unclear, Sklyarov said he would suggest the person find a lawyer who could figure it out.
I'm sure he was told his previous project was legal. It's sad that now lawyers will have to say "Yes, this is legal. Except in the USA."
Well, depending on how liberally you interpret the DMCA, his talk at DefCon could be construed as a crime. It would then be breaking a US law in the US, which we hold non-residents for all the time.
You can't use the tape as a substitute for testimony, but you can use it for evidence.
The bit I don't understand is why the defense would allow this without objection. It is not usual to accept a videotaped deposition if the person giving it is available to testify in person. A videotape does not give an opportunity for cross examination. The only explanation would be if the defense did not think that the tape hurt their case or if the judge made some bizare ruling.
Using a tape in this way would seem to be bad for the prosecution. The jury will inevitably suspect that there is a problem with the testimony if the proescution have to use that type of tactic.
Given the political nature of the trial and the reported intention of the FBI to 'take out a high profile hacker' I would not be suprised if some jury nullification was going on here. This is not like the Napster case where piracy was the issue, the real issue here was the ability of the consumer to have any control over the content they purchased. It does not take much intelligence to realize that the same technology applied to TV means that it won't be possible to use a VCR in future.
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Actually, since Dmitri wasn't the defendant, they could have called him. Testifying against ElcomSoft was also part of his plea agreement.
I was just about to release to the world the greatest invention ever, when I read Sklyarov's
article, and that part about the lockpick possibly being illegal got to me! I realized a teleporter could be used to bypass shrink-wrap licenses, pop cd's out of thir unopened jewelbox vaults, or maybe even make "secure" adobe pdf documents useful (I haven't figured that one out yet, but it MAY be possible). Sorry, world! My lawyer has advised me to destroy all the evidence, make my lab notebooks useless by converting them to MS-WORD format, and additionally to re-format my brain to avoid any chance of this big-media-busting technology being used against me in court.
The court's still out on code-as-speech though it's pretty obvious to us. If the supreme court decides that source code is speech, distributing decss and other such programs in source form would then be undeniably legal. Distributing binaries would remain illegal under the DMCA.
Sorry. Kind of drifted there. I do seem to recall something about there being legal standards as to what would be considered "speedy" and that timeframe is longer than I'd want to spend in jail. Win or lose, you can generally expect the whole process to be more of a pain in your ass than you want it to be. Dmitry might be able to sue someone (Adobe, most likely) for something but I also seem to recall that you generally can't expect a whole lot from civil cases involving the criminal process.
obIANAL, but I've watched all the episodes of "Ally MacBeal"
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Video someone before the trial, edit the tape, and play that back in court...and with no intention of letting him stand up and defend himself?
He wasn't the one on trial, though, so he didn't need to defend himself.
Depositions taken in accordance with Federal Rule of Criminal Procedure 15 may be used at trial in accordance with subpart (e) of that Rule:
Where's the justice here?
The justice here was almost the same justice the DoJ dealt Kevin Mitnick; but ElcomSoft was found not-guilty and Sklyarov only spent a short time in custody.
What we need to do as a community is fight the DMCA and DRM Technology, in hopes that this doesn't happen again.
The justice is that we may now have a vocal spokesman to put an end to the "In Soviet Russia..." cliche.
Where does the school board find them and why do they keep sending them to ME?
Well, depending on how liberally you interpret the DMCA, his talk at DefCon could be construed as a crime.
Yeah, but no matter how you read the indictment, that's not why he was arrested.
Why do folks keep misrepresenting what actually happened here?
The fact is, he did all his work on the product (which is legal in its country of origin) in Russia, where, last I heard, US laws don't apply. The fact that they were waiting to arrest him, apparently, for giving an academic lecture on a product he produced where it was legal is far more disturbing than you make it out to be.
ISTR that Skylarov isn't the first person to whom this sort of jurisdictional knucklebones has happened at the behest of some large, US-based money-wielding entity. As you may recall when the DeCSS story broke, the US wanted Jon Johansen to stand trial in the US for breaking a US law when he wasn't even in the US when he allegedly "broke" it (how can you break the law of another country when you aren't even there, I'd like to know?), but that quickly passed off around the same time as the Norwegian authorities decided to go ahead and prosecute him for related offenses, real or imagined. Also, you may recall Edward Felten's legal difficulties surrounding his paper on encryption.
All of which, in my (paranoid?) mind, adds up to the US's playing very fast and loose with international law (what else is new?) and an immense chilling effect in the technology field.
If it were provable that Elocomsoft was deliberately and knowingly (with malice aforethought) selling products to customers not legally able to buy them, that would be another matter, which I think was upheld with the verdict here. However, the very clear perception that I'm getting from the Elocomsoft case in general is that the US wants to enforce the DMCA worldwide, and will do just about anything it can to make sure that it gets what it wants. Note, please, I'm not a US citizen, and so don't have US patriotism getting in the way of my natural impulses to be skeptical and cynical of the US government's motives in any given instance, so I could be erring on the side of hostility here.
I'm not a geek, I'm just a clever script.
Well, if this case has anything to say for precedence, it wouldn't surprise me if China gained that right.
Scary, eh?
If anyone ever invented a teleporter, that would be the most dangerous thing ever invented, and would probably mark the end of civilization. Just imagine a how much trouble a terrorist could cause, teleporting nukes and radioactive waste without worrying about silly border checkpoints.
The fifth amendment gives you the OPTION to not testify against yourself. If you want to be called, you certainly can. It's not until you're sitting in the witness box that you have the option to excercise your fifth amendment right.
Travis
There are several rules of transliterating
cyrillic into Latin; I think there is
an official Library of Congress version.
But "Sklyarov" is good enough if you want to
convey the way it sounds as close as possible.
Considered harmful.
Sklyarov wasn't arrested for talking.
Read the article.
You're missing quite a lot, read the article next time before you post. What the prosecution did is dirty pool, a constitutional sidestep, and I don't like it. I expect higher ethical standards from my government. (*Yes, I know, FUD, and uninformed opinions from people who didn't read the article. It's just par for the course around here)
Even Jesus hates listening to Creed.
Wow. That's helpful. And convincing. You were on a debate team, weren't you?
This case was not against Dmitry Sklyarov, it was against ElcomSoft Co. Ltd. While it is true that a statement that he made to the government could be used against him without him being called to the stand, it is legally questionable that the prosecution could use a video tape in place of actual testimony. According to the Constitution, the accused has the right to face their accuser in court and cross-examine them.
For reference, the Miranda Warning is "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."
Keep in mind a couple of things: the jury found that ElcomSoft did violate the DMCA because the software could be used to break the e-book controls. ElcomSoft was not found guilty because the jury found that they did not intend to break the law. That's why ElcomSoft was not found guilty: their actions lacked intent, which is required for a criminal conviction.
This was purely a circumventing-technological-measures case, with virtually no bearing on real copyright issues at all.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Ok, up front: I think DMCA is crap and I don't think this guy did anything wrong.
But, to be technical, he wasn't "breaking US law in Russia." The US law wasn't in question until the software was exported to the US at which point it becomes subject to US laws. Then, by setting foot in the US, he became subject to US law.
In other words, if you are going to write questionable software outside the US and then make it available in the US, you should probably avoid flying in to make the convention circuit.
AS I understand it Dimitry was present in person at the trial so the use of the videotape does not appear to be legit.
However Dimitry does not really have the right to complain here since the trial is not about witnesses being able to make their case. At the recent David Irving libel trial in London Irving asked a witness if he had seen a picture of Adolf Hitler in Irving's house as had been reported. The witness answered 'no' and afterwards wrote an article where he said he did not see a picture of Adolf Hitler but Irving had served capapes with cocktail sticks carrying a swastika.
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"So you're saying the DMCA isn't a real copyright issue? I can't really agree with that."
You may not agree with it, but that doesn't make it false. The DMCA has nothing to do with copyright law. Unauthorized reproduction of an existing work is already protected BY Copyright, if you copy something for a purpose other than archival backup or fair use, you are already in violation of the law.
OTOH, the DMCA makes it a crime to build a tool which might allow you to copy (or access) copyrighted material. Under the DMCA, a web browser could be considered illegal, as it translates an encrypted (HTML) data source which might be copyrighted, into a readable (plain text) format.
An equivalent would be if you were to spend years carving an intricate wooden statuette, and then someone threw you in jail because somebody *MIGHT* come along and use it to club someone over the head.
Don't assume that just because something is LAW, that it's automatically JUST or RIGHT. That's only true in a theocracy (where any law is, by definition, the Will of God). The DMCA is a very bad law, created by people with very little technical expertise, and a great deal of fear.
Troll.
If anyone doubts it, notice his argument is that everyone SHOULD have the software and his sig link is anti-DMCA.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
All a semi-automatic gun is load the next round from a magazine into the chamber. It allows you to clean up a kill that you might have made messy by allowing you to fire off another round quickly.
To be bluntly honest, a deer rifle or other bolt-action rifle can be as deadly or deadlier if you're trying to kill someone. Most semi-autos are carbines, good for brush shooting (close-quarters deer hunting, etc.) and aren't very accurate much past a football field in distance. Brush hunting is seldom done with a scope and I'd rather be hunting with one of my semi-auto's in those conditions than the lever action 30-30 I also have.
However, the 30-06 that most people hunt with hails from the M1 Grand, a military weapon from WWI- and has an accurate lethal range of well over a mile with a scope. I'll ask you do people need that? Yes- to ensure a clean kill at larger distances like you'd find in Colorado, New Mexico, etc. where a LOT of deer and antelope hunting occurs.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
This also means they couldn't have used the deposition against him nor even depose him- for the same reasons you give. Your line of reasoning doesn't work.
The reason why they used the deposition was that there was no way for cross-examination of the "Witness" in the case of the taped deposition. If they would have called him to the stand, the defense could have cross-examined Dimitry and weakened the prosecution's case. They didn't want to take chances on their case because it was somewhat shaky to begin with.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
but it sounds like you chose the correct career path for yourself :)
errr....umm...*whooosh* *whoosh* Is this thing on ?
Yes, of course China could claim jurisdiction. We've already tangled with a list of countries on free speech issues.
If so I hope China doesn't go after a US citizen for running a pro-democracy journal.
I hope they do. That would be a case worth fighting. The Communists versus the Americans -- it would be like a Rocky movie or something. The US itself is supposed to be a pro-democracy journal.
To be serious, the brutal Chinese gov't treatment of Tibet, the Falun Gong, internet surfers (a few are believed to have did in police custody), Tienamen Square, even tax evaders (death penalty!) collectively are overwhelming, yet out trade and other entanglements with them discourage our official protest. Details and details.
To give you an idea of the trade issue, I'm trying nearly in vain to find sneakers not made in China (there are a few).
I made three statements:
Wow. That's helpful. And convincing.
I asked one question:
You were on a debate team, weren't you?
Statements when I wanted statements, a question where it was needed.
As for backing up statements... Well, that was the point of my post.
Don't point out the splinter in someone else's eye, when you have a log in your own. To put it more plainly, I am suggesting you back up your own position (calling someone else wrong) before telling me (while probably intending to tell svyyn) to back up my (his) statements.
The only way I could possibly be wrong, is if my addition to this story was posted in earnest. For the record, it was sarcasm.
Check who you are replying to next time. And ease up on the animosity. Statements such as "I'm not about to debate with such stupidity. But I'm sick of hearing this nonsense over and over. Back up your fucking statement. Read the fucking indictment. You'll learn as you try that you are wrong." don't boost your credibility.
Damn, I must be bored.
BTW, I know this is getting off the topic of the ElcomSoft trial, but I want to make a point here.
There are a number of things to consider with having many people owning handguns for defense in their homes:
1) There are many people who successfully use handguns to stop "home invasion" crimes. One problem with this is that the number is not really kept in the same group of statistics that are kept for felony crimes (murder, robbery, rape, etc.) This makes the comparison between the number of people stopped vs. the number of people who die from accidental firearm discharge a very hard number to come up with.
2) The deterent effect of handguns. To be honest here, you need to keep in mind that potential home burglers are not going to even want to take a chance of getting shot at if they can help it. If they know that, for example, New York State bans handguns and for that matter all firearms, and New Jersey let's all their citizens use whatever guns they want, there will also be a direct correlation with the amount of crime done in both states.
So please define what you mean by "most people end up getting shot by their own handguns". That implies more than 50% of all handgun owners are going to end up shooting themselves with them. I just don't see that happening.
I'll make this simple.
My statement.
Not my statement.
Any questions? Again, I say, ease up on the hostility.
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/f re/query=[jump!3A!27rule804!27]/doc/{@257}?
By the way, the reason you can't use videotaped depositions generally is because they are hearsay.
"And unlike the Napster guys, this guy's tool's primary purpose and most common use, wasn't copyright infringement. "
I can just see the salesmen now: "you should only use this software to make backup copies, or move the copy to a new machine". wink wink nudge nudge.
Vote for Pedro
I've said quite a few things. One of them I even stated that I was restating.
So teh question becomes "Why are you shamelessly ranting about my inability to understand the law when I have given you no evidence to support that position?"
My commentary was strictly on your attitdude torwards someone you felt was misinformed. And then you tear into a rant on stupidity and nonsense, giving the impression that I had somehow taken someone else's words for myself.
Eh. Perhaps you are just trying to waste my time, and perhaps you are being purposefully obtuse. Perhaps there is some other explination. I find this "discussion" to be entertaining enough not to care. Thanks for your participation.
If you are distributing your pro-democracy journal in China, I think their laws would apply. That what's happening in this case. If you don't want to get in trouble with US law, don't break US law in the US.
Vote for Pedro
don't make devices which help people break copyright law.
Oh, you mean like photocopiers and faxes and VCR's and PVR's and tape recorders and modems and FTP programs and web browsers and photoshop and camcorders and cameras and e-mail and magic markers and telephones and scanners and printers and CDR drives and and and...
We had copyright protection before the DCMA, all the law you need to prosecute crime. DMCA isn't copyright law. It is paracopyright at best.
In the 4 years since DMCA was passed NOT A SINGLE PERSON has been convicted, it has yet to be challenged in court on constitutional grounds.
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Oh, you mean like photocopiers and faxes and VCR's and PVR's and tape recorders and modems and FTP programs and web browsers and photoshop and camcorders and cameras and e-mail and magic markers and telephones and scanners and printers and CDR drives and and and...
No, I mean devices primarily created for breaking the law.
We had copyright protection before the DCMA [sic], all the law you need to prosecute crime.
I disagree. When you have cracks and serial numbers being distributed all over the internet with no basis for prosecuting the people who profit off their distribution, you have to admit that copyright law has become unenforcible.
DMCA does not enforce copyright. Period.
Take a look at the DeCSS situation. You can copy the entire disc, CSS and all. And this is exactly what people do when they sell illegal copies.
Decrypting the disc has absolutly nothing to do with copying the disc. Isn't it a bit odd that after a massive search the MPAA still got up in court and said they couldn't find a single example of DeCSS being used toviolate copyright?
And isn't it a bit odd that they reported the same thing in the Elcomsoft case? A major search and not a single case found where it was used to violate copyright. I don't know how many copies of the software they sold, but apparently the people who bought it had some use for it other than violating copyright.
No, I mean devices primarily created for breaking the law.
Dual problem. Not only is the "primary reason for creation" subjective, but the law becomes worthless if you DON'T interpret it horribly. If someone had written DeCSS and Elcomsoft's E-book software for "legal purposes" then the result is exactly the same, the DRM is worthless.
DMCA "protects" DRM from Eeevil people like students and librarians and their Eeevil legal activities like fair use.
you have to admit that copyright law has become unenforcible.
DRM is unenforcible, with or without the DMCA. And attempting to enforce DRM stomps on people doing nothing wrong.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
DMCA is copyright law. Period.
There's a little thing called Title 17 of the US Code. It is entitled "Copyrights." The DMCA is under it.
Take a look at the DeCSS situation. You can copy the entire disc, CSS and all. And this is exactly what people do when they sell illegal copies.
So?
Decrypting the disc has absolutly nothing to do with copying the disc.
So?
Isn't it a bit odd that after a massive search the MPAA still got up in court and said they couldn't find a single example of DeCSS being used toviolate copyright?
They should have asked me. I've used DeCSS to violate copyright.
And isn't it a bit odd that they reported the same thing in the Elcomsoft case? A major search and not a single case found where it was used to violate copyright.
No. Elcomsoft wasn't guilty.
I don't know how many copies of the software they sold, but apparently the people who bought it had some use for it other than violating copyright.
Or maybe the people just didn't get caught. That's why the DMCA exists in the first place. It's really hard to catch copyright infringers.
Dual problem. Not only is the "primary reason for creation" subjective, but the law becomes worthless if you DON'T interpret it horribly.
Of course it's subjective. So is "justifiable homicide." That's what judges and juries are for.
If someone had written DeCSS and Elcomsoft's E-book software for "legal purposes" then the result is exactly the same, the DRM is worthless.
Well, for one thing there's no mens rea, which is what we found in the Elcomsoft case. If someone kills someone accidentally the result is exactly the same, but the legality is quite different. But beyond that, the law protects copyright holders from devices created for a certain purpose, it also protects them from devices which have limited purpose other than circumvention.
DMCA "protects" DRM from Eeevil people like students and librarians and their Eeevil legal activities like fair use.
If the DMCA "protects" it, it isn't legal, is it?
DRM is unenforcible, with or without the DMCA. And attempting to enforce DRM stomps on people doing nothing wrong.
It's not completely enforcible, but I've found it a lot harder to get VMWare cracks since the DMCA was passed. I'm sure it makes it harder to use the products of others without paying for them, and that's all it's supposed to do, not make it impossible.
There's a little thing called Title 17 of the US Code. It is entitled "Copyrights." The DMCA is under it.
They can put it under title 26 if they like, that doesn't mean it collects taxes. If they want to justify the DMCA under the copyright clause of the constitution I think there's a good chance it will be stuck down as unconstitutional. And the reason it hasn't happened already is that there hasn't been a single conviction under the DMCA, thus no case to bring to the supreme court.
So?
So?
You sound confused. Perhaps you didn't notice the line before that which answers your two questions.
I've used DeCSS to violate copyright.
Unless you're going to fill in details I'd say there's a good chance that whatever you claim you did was not in fact a copyright violation. And if it was, you could have done it without DeCSS. Not that it matters, you can use a photocopier or VCR to violate copyright. Or even a pencil.
No. Elcomsoft wasn't guilty.
While you're right they found Elcomsoft not guilty, perhaps you didn't know they still found the software illegal under the DCMA. So yes, I was absolutely on point that the software was being used for perfectly legal purposes and they couldn't find a single copyright violation.
>apparently the people who bought it had some use for it other than violating copyright.
Or maybe the people just didn't get caught.
Perhaps you didn't realize their customer list includes "Fortune 500 companies and US government agencies". So yeah, apparently their software was being used for perfectly legitimate purposes.
>Dual problem. Not only is the "primary reason for creation" subjective, but the law becomes worthless if you DON'T interpret it horribly.
Of course it's subjective. So is "justifiable homicide."
Apparently you didn't catch the rest of the sentence. Any law against murder that has to include justifiable homicide as illegal is bad. Perhaps you missed the case (pre-DMCA), but the "primary purpose" of VCR's was to commit copyright violation. At least it was until the case got overturned in the the supreme court. The DMCA's prohibitions are horribly overbroad.
>legal activities like fair use.
If the DMCA "protects" it, it isn't legal, is it?
Thank you for making my point for me.
Copyright protection does not exist in fair use. DMCA makes fair use illegal. DMCA does not enforce copyright. And it is probably unconstitutional.
I'm sure it makes it harder to use the products of others without paying for them, and that's all it's supposed to do
Again you completely missed the second half of what I said. What it actually does is stomp on people doing nothing wrong. It criminalizes perfectly legitimate activity and it makes copyright violation... well... it makes copyright violation still illegal.
About the best you can say for the DMCA is that sometimes it makes copyright violation less convient. Outlawing photocopiers and VCR's would make copyright violation less convient too.
I don't think you should criminalize legitimate activity and take away people's rights just to make something already illegal less convient.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Unless you're going to fill in details I'd say there's a good chance that whatever you claim you did was not in fact a copyright violation.
I borrowed a friend's South Park DVD, copied it to my hard drive, and returned the DVD to my friend.
Perhaps you didn't realize their customer list includes "Fortune 500 companies and US government agencies". So yeah, apparently their software was being used for perfectly legitimate purposes.
Apparently the courts found otherwise.
Perhaps you missed the case (pre-DMCA), but the "primary purpose" of VCR's was to commit copyright violation.
I guess you missed the case. The "primary purpose" was ruled to be timeshifting.
Copyright protection does not exist in fair use. DMCA makes fair use illegal.
The DMCA specifically makes fair use legal. "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
> Unless you're going to fill in details I'd say there's a good chance that whatever you claim you did was not in fact a copyright violation.
I borrowed a friend's South Park DVD, copied it to my hard drive, and returned the DVD to my friend.
If you are going to REPEATEDLY ignore adjacent sentences then there's not much point discussing it with you. You did it three times last post, and twice more in this one. I said:
I'd say there's a good chance that whatever you claim you did was not in fact a copyright violation. And if it was, you could have done it without DeCSS. Not that it matters, you can use a photocopier or VCR to violate copyright. Or even a pencil.
Well, it uncertain is what you did was actually a copyright violation, but even assuming it is, my next sentence certainly applies - you certainly could have done it without DeCSS.
>So yeah, apparently their software was being used for perfectly legitimate purposes.
Apparently the courts found otherwise.
What possibly makes you say that? They ruled the software was illegal under the DMCA. They NEVER said that it wasn't being used for legitimate purposes.
The DMCA specifically makes fair use legal. "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
Yeah, that line is a pisser.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Nutz. I left out the second case where you ignored consecutive sentences.
>Perhaps you missed the case (pre-DMCA), but the "primary purpose" of VCR's was to commit copyright violation.
I guess you missed the case. The "primary purpose" was ruled to be timeshifting.
I wrote:
Perhaps you missed the case (pre-DMCA), but the "primary purpose" of VCR's was to commit copyright violation. At least it was until the case got overturned in the the supreme court.
Gee, where did that second sentence dissapear to when you quoted me? And just incase you didn't understand what I said, I'll rephrase it:
Courts ruled the "primary purpose" of VCR's was to commit copyright violation. The supreme court then overturned the case.
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Me: I borrowed a friend's South Park DVD, copied it to my hard drive, and returned the DVD to my friend.
If you are going to REPEATEDLY ignore adjacent sentences then there's not much point discussing it with you. You did it three times last post, and twice more in this one.
Whoa, chill out. If I ignored a sentence of yours it was accidental.
I'd say there's a good chance that whatever you claim you did was not in fact a copyright violation. And if it was, you could have done it without DeCSS. Not that it matters, you can use a photocopier or VCR to violate copyright. Or even a pencil.
Well, it uncertain is what you did was actually a copyright violation, but even assuming it is, my next sentence certainly applies - you certainly could have done it without DeCSS.
How could I have copied the DVD to my hard drive without DeCSS? And how is it uncertain that what I did was actually a copyright violation? Are you claiming that it's fair use?
I don't know how many copies of the software they sold, but apparently the people who bought it had some use for it other than violating copyright.
Me: Or maybe the people just didn't get caught. That's why the DMCA exists in the first place. It's really hard to catch copyright infringers.
Perhaps you didn't realize their customer list includes "Fortune 500 companies and US government agencies". So yeah, apparently their software was being used for perfectly legitimate purposes.
Me: Apparently the courts found otherwise.
What possibly makes you say that? They ruled the software was illegal under the DMCA. They NEVER said that it wasn't being used for legitimate purposes.
If the primary purpose of software is to break the law, I wouldn't call that a legitimate purpose. Semantics, I guess.
Courts ruled the "primary purpose" of VCR's was to commit copyright violation. The supreme court then overturned the case.
OK, you're right, I didn't understand what you were saying. Probably because your statement doesn't have a point.
Probably because your statement doesn't have a point.
It was a few posts back, but my point was that the DMCA must be and is being interpreted horribly. Even before the the DMCA existed courts ruled the VCR's primary purpose was infringement. It took a trip all the way to the supreme court to overturn. According to that supreme court ruling the test was whether the item in question had "substantial non-infringing uses". Under the DMCA all sorts of things that pass the "substantial non-infringing uses" test are being declared illegal. Making DeCSS illegal is like making VCRs illegal.
*If* things like DeCSS are brought to the supreme court and *if* they stand by their previous decision then I think these things would be declared legal. That bad interpretation of the DMCA would overruled. It would also make that section of the DMCA mostly useless.
How could I have copied the DVD to my hard drive without DeCSS?
The same way you copy any file. Open a window to the DVD drive, point to it, hold the mouse down and drag it onto your desktop. That makes a completely functional copy. And you can send it over the internet to a friend and he can watch it on his DVD player. All without DeCSS.
I am completely serious. If you have any programmer-type friends go and ask them. The file is encrypted, but encryption does not prevent copying or viewing. Any player that can play the original WILL play the copy. Calling it copyprotection or copyright protection is a complete deception. They have been LYING to you.
Me: Or maybe the people just didn't get caught.
We aren't communicating clearly on this, I'll try entirely rephrasing what I mean.
Maybe there what copyright infrigment that wasn't caught. Maybe there wasn't. But there definitely WAS legitimate use. The DMCA outlaws both.
There is a legal principle that says "something always outweighs nothing". If they had shown actual violations and monetary losses then you have to balance those losses against the the harm of outlawing legitimate activity. Since there is definitly legitimate activity that would be harmed, and no evidence of losses then you are weighing something against nothing (or at most the unsubstanitated claim of possible losses).
Not being able to show any harm is a major blow to their position, expecially when they tried really hard to find some. It means there may not have been any, or there was too little to be able to find it.
If the primary purpose of software is to break the law, I wouldn't call that a legitimate purpose. Semantics, I guess.
I never said the "primary purpose" was legitimate. I said it was being used for legitimate purposes. (You said the court said otherwise.) I'm also saying that based on all the evidence presented in court the "most common purpose" was legitimate, there wasn't a single shred of evidence of illegal use. And that is exactly what I meant when I said the DMCA is intrepreted horribly. How the heck can the the "primary purpose" be an illegal one when the "most common purpose" was legitimate?
I always thought "primary" was pretty much the same thing as "most common". Pretty twisted semantics in my oppinion.
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I specificly said we could assume your claim to have used DeCSS to violate copyright WAS a violation, any result either way to the following is immaterial to my argument.
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Are you claiming that it's fair use?
No, I said it was uncertian if it was a violation. Implying it was uncertain if it was fair use.
And how is it uncertain that what I did was actually a copyright violation?
The supreme court came up with a four point test:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.
On point (1) it is unclear. You are not making money on it, that leans very heavily towards fair use. Unfortunately you didn't say you were making any educational, research, or non-profit use of it. Any of those would have locked it up as fair use.
I don't really see what impact point (2) would have. They want to be able to have slightly different rules for different kinds of works.
Point (3) leans against fair use, you copied the entire work. Had you copied a single scene or a still image it would be solidly fair use.
Point (4) may lean to fair use also. By making a single personal copy the impact is no more than the loss of a single sale, a pretty miniscule effect on the market value of the work as a whole. It is also far from certain that it really would mean a lost sale.
The publishing industry however has been trying to argue that (4) be weighed in terms of the cumulative effect of every individual case. I see some merit to thier position, but I don't quite agree with it. Either the individual case is fair use or it isn't.
So it's not a clear cut case of fair use nor a clear cut violation. The copyright lobby is painting a simplistic and biased picture of what constitutes a violation. Copyright was explicitly created as a limited monopoly on commercial use of a work - preventing someone else from grabbing the profits. Remember - libraries are absolutely protected. The copyright lobby would outlaw libraries if they could get away with it, think of all the lost potential sales.
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I specificly said we could assume your claim to have used DeCSS to violate copyright WAS a violation, any result either way to the preceding is immaterial to my argument.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
It was a few posts back, but my point was that the DMCA must be and is being interpreted horribly.
You mean by slashdotters? The EFF? Other than that, I don't see how it's being interpreted horribly at all.
According to that supreme court ruling the test was whether the item in question had "substantial non-infringing uses". Under the DMCA all sorts of things that pass the "substantial non-infringing uses" test are being declared illegal.
That ruling was applied to contributory copyright law though, not the DMCA. The DMCA has a different test.
Making DeCSS illegal is like making VCRs illegal.
Perhaps so, but that doesn't mean Congress can't do it.
*If* things like DeCSS are brought to the supreme court and *if* they stand by their previous decision then I think these things would be declared legal. That bad interpretation of the DMCA would overruled. It would also make that section of the DMCA mostly useless.
Perhaps, but I don't see the Supreme Court overturning a case like DeCSS. And neither did 2600, which is why they didn't appeal.
Maybe there what copyright infrigment that wasn't caught. Maybe there wasn't. But there definitely WAS legitimate use. The DMCA outlaws both.
There definately was copyright infringement that wasn't caught. At least one instance was committed by me. The DMCA does not outlaw legitimate use. It outlaws the distribution of the product to someone who might then use it legitimately. Big difference.
Me: How could I have copied the DVD to my hard drive without DeCSS?
The same way you copy any file. Open a window to the DVD drive, point to it, hold the mouse down and drag it onto your desktop. That makes a completely functional copy. And you can send it over the internet to a friend and he can watch it on his DVD player. All without DeCSS.
My friends' DVD players doesn't play hard drive files. So I'd have to buy a multi layer DVD burner for tens of thousands of dollars.
So instead I use DeCSS, and then I can watch the movie on my computer.
I am completely serious. If you have any programmer-type friends go and ask them. The file is encrypted, but encryption does not prevent copying or viewing. Any player that can play the original WILL play the copy. Calling it copyprotection or copyright protection is a complete deception. They have been LYING to you.
Encryption prevents viewing. Any player that can play the original does so after decrypting. It may or may not be deceptive to call it "copyprotection or copyright protection." That's semantics. But it certainly is effective in forcing people to pay for the product. Without DeCSS I would have probably paid for that copy of South Park. With DeCSS, I didn't.
I never said the "primary purpose" was legitimate. I said it was being used for legitimate purposes. (You said the court said otherwise.)
Apparently I misread something you said. My apologies.
I'm also saying that based on all the evidence presented in court the "most common purpose" was legitimate, there wasn't a single shred of evidence of illegal use. And that is exactly what I meant when I said the DMCA is intrepreted horribly. How the heck can the the "primary purpose" be an illegal one when the "most common purpose" was legitimate?
There are three possibilities. The product:
In the DeCSS case it may or may not be true that the product has a purpose other than circumvention, but that's irrelevant because it was shown that the product was designed primarily for circumvention.
I specificly said we could assume your claim to have used DeCSS to violate copyright WAS a violation, any result either way to the following is immaterial to my argument.
Absolutely agreed.
Point (4) may lean to fair use also. By making a single personal copy the impact is no more than the loss of a single sale, a pretty miniscule effect on the market value of the work as a whole. It is also far from certain that it really would mean a lost sale.
I state definitively that it would. I don't see how it matters that the loss is miniscule compared to the value as a whole. I don't think the courts have ever taken such a fact into consideration. So I see 3 and 4 going against, 2 is neutral, and 1 is neutral to against. I think fair use is clearly not the case. But now we've gotten into pure opinion really, so we might as well agree to disagree.
I'll be sure to try to get a juror like you if I ever do get sued for my DeCSS escapade, though.
That ruling was applied to contributory copyright law though, not the DMCA. The DMCA has a different test.
:)
:)
Are you now saying that the DMCA has nothing to do with copyright law?
The test was what things can and cannot be held responsible for potential copyright violations. According to that test things like DeCSS are perfectly fine.
> Making DeCSS illegal is like making VCRs illegal.
Perhaps so, but that doesn't mean Congress can't do it.
They can pass a law making smiles illegal if they like, that doesn't mean the law is valid. When congress passes laws that violate supreme court rulings those laws tend to get struck down.
And even if a law against VCR's did hold up that wouldn't make it a good idea. I think most people agree oulawing VCR's is a bad idea - except the idiots who tried to do exactly that. And those very idiots now make more money on videos than they do on theaters. Yep, videotape killed hollywood alright. Just like the internet is going to kill hollywood.
I don't see the Supreme Court overturning a case like DeCSS. And neither did 2600, which is why they didn't appeal.
2600 didn't do anything Professor Felton hasn't done. Have you seen his DeCSS gallery? The RIAA beat a hasty retreat in the Felton case because they would have been smacked down hard, possibly striking down the DMCA in the process. 2600 didn't proceed because expert oppinion was that the negative perception of the defendant would hurt their chances of taking down the DMCA. They certainly DO want to proceed, just with a different defendant.
The DMCA does not outlaw legitimate use.
Please enlighten me, how do you make those legitimate uses without breaking the law?
My friends' DVD players doesn't play hard drive files.
It took me mere seconds to google a software DVD player that will play from the hard drive. "PowerDVD XP can also preview and playback DVD video file sets from Hard Disk Drives."
So I'd have to buy a multi layer DVD burner for tens of thousands of dollars.
It took me mere seconds to google a DVD burner for $225. That's hardly more than CD burners go for.
So instead I use DeCSS, and then I can watch the movie on my computer.
Like I said, you could have done it without DeCSS.
Encryption prevents viewing.
Nope, because...
Any player that can play the original does so after decrypting...
exactly the same way it will decrypt and play any COPY.
CSS encryption does not prevent copying.
CSS encryption does not prevent you from viewing copies.
It may or may not be deceptive to call it "copyprotection or copyright protection." That's semantics.
It is a flat out lie.
It's fine if you came into this believing what they presented as the truth, but I really hope this post has explained why it is completely false.
designed primarily for circumvention
As I think I've shown, that circumvention has nothing to do with copyright violation. You can violate copyright without DeCSS. About the only thing outlawing DeCSS does is outlaw the legitimate uses.
But now we've gotten into pure opinion really, so we might as well agree to disagree.
Yeah. It's tempting to discuss the meanings of fair use points 1,3, and 4, but these posts are already too long
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.