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Supreme Court to Take Up DeCSS Case

Posted by ryuzaki0 on from the movin-on-up dept.

geekee writes "CNET has posted an article claiming the US Supreme Court will take up a 1999 case involving individuals posting DeCSS on web sites based in the US. In November, the California Supreme Court had ruled that Matthew Pavlovitch could not be sued in CA since he's not a CA resident 'with no substantial contact with California'. The injunction placed before the start of the CA trial will remain in effect. The case is essentially about juristiction when attempting to prosecute a number of defendants simultaneously in order to save on legal fees."

34 of 154 comments (clear)

  1. DeCSS by oateater · · Score: 4, Funny

    I sure hope Judge O'Conner doesn't tell everyone that I burnt her The Matrix last week..

  2. Fair use & reverse engineering by bolsh · · Score: 3, Interesting

    Not being a constitutional lawyer, is it possible to turn this on its head and while people are there anyway arguing that DMCA is an unconstitutional infringement on freedom of expression?


    And although "fair use" and the right to reverse engineer aren't constitutional, could there be an argument for striking down DMCA because of the limitations it puts on those principles?


    Dave.

    1. Re:Fair use & reverse engineering by CodeShark · · Score: 5, Insightful
      Fair use, etc. and the prohibition against reverse engineering as a federal crime are both areas I would like to see the DMCA struck down as well. However, the scope of this case won't touch on much of your questions, except in the matter of "jurisdiction", which is still a huge one and I am glad that the court has taken it up because at it's core it is critical to the freedom of the Internet.

      Where this case holds my interest is that the DMCA is a Federal law with country wide jurisdiction, but the CCA (and MPAA) are suing under California law and (if my non-lawyerly reading of the text is accurate) essentially applying it across state lines in a way that if allowed would essentially put a chilling effect on freedom of speech, i.e., you can say what you want as long as a corporate interest in another state can use the laws of that state to threaten you.

      For my part, I really don't think that the SCOTUS (Supreme Court of the United States) will disagree with the circuit court, but this case could also act as a precedent setting case for other related issues outside the realm of the Internet that bear some deeper legal analysis.

      That said, I think that a win for the sites that posted the DeCSS source code is not only a victory for free speech but a nail in the coffin of CSS. Until the MPAA comes up with their next form of encryption and we start the whole ball game over again.

      --
      ...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
    2. Re:Fair use & reverse engineering by famazza · · Score: 5, Insightful

      Freedom is just a tool to make more money and keep the population under control.

      • Freedom is Slavery
      (Just like G.Orwell in 1984)

      If Freedom is a threat to profit then something must be done. This is what DMCA is about! They are trying to transform fair use into piracy, transform right into crime.

      Try to figure this. If you have a TV then you can share it with your neighbor, and he can come to your home and watch some TV. If we follow RIAA/MPAA steps to the extreme we'll have a near future where sharing your TV with your neighbor will be piracy. (reality check: Finnish Taxi Drivers Must Pay Music Royalties)

      So the point here is not about what is right and what is legal. It's about what is profitable and what is not.

      --

      -=-=-=-=
      I know life isn't fair, but why can't it ever be un-fair in MY favor!?
    3. Re:Fair use & reverse engineering by Rick+the+Red · · Score: 3, Interesting
      (reality check: Finnish Taxi Drivers Must Pay Music Royalties)
      While I'm sympathetic to your arguement, there's a slight difference between your living room and a taxi cab: you pay to ride in the cab. If you charged your neighbor to come over and watch TV, you'd be violating the terms of the current license on your personal DVDs and video tapes -- read the fine print that comes with the FBI warning, where it says something to the effect of "no commercial viewing." This is nothing new.

      --
      If all this should have a reason, we would be the last to know.
    4. Re:Fair use & reverse engineering by Qzukk · · Score: 3, Funny

      If the taxi driver has to pay to play music, does the radio station get a refund for the N people who THEY paid for too?

      The problem here is that they're selling the same good (right to listen to song X) repeatedly. This is NO different from going to the auto dealer:

      "That will be $15000.... oh wait, you have a family? Well, each of them *might* use the car so we'll have to work something out. Let's see, there's 5 of you so the total comes out to $75000."

      Of course in the RIAA's case, later the dealer would report to the car manufacturer:

      "Well, we sold one car this month, here's your $500"

      --
      If I have been able to see further than others, it is because I bought a pair of binoculars.
  3. ReCSS by jamesjw · · Score: 5, Interesting


    I am surprised there isn't a rogue bunch of do-gooder MPAA avocate programmers out there building a ReCSS..

    You know.. to reprotect all those unprotected movies out there in the ether..

    Then the MPAA could sue everyone that DOESN'T include a copy of "ReCSS" on their website :)

    --
    -- If at first you don't succeed, lie!
    1. Re:ReCSS by mark_lybarger · · Score: 3, Insightful

      i'm sure you're being sarcastic, but that's like someone trying to sell automobile door locks from the 70's that are easily openable with a slim-jim. people know they're junk, they don't work anymore for what they were intended for, so why would anyone in thier right mind try to sell them. we've all moved on to remote keyless locks (i don't know if they're any less suseptable to breakins, i'm just assuming so for the sake of discussion).

      here you have the mpaa, they put a "lock" on their IP. that lock lasted a few years if that. the locks been broken and nothing they can ever do will fix their lock. hey, here's a concept: give the consumers something they're willing to go to the theaters and watch! give them something they're willing to spend their 15-20$ to buy the dvd rather than spending 30 minutes copying it. i don't see that hapening anytime soon though

    2. Re:ReCSS by racerx509 · · Score: 5, Insightful

      "give the consumers something they're willing to go to the theaters and watch! give them something they're willing to spend their 15-20$ to buy the dvd rather than spending 30 minutes copying it. i don't see that hapening anytime soon though"

      I disagree. Generally they do put out some decent stuff. I think what is happening is that they do not want to suffer the same fate as the RIAA. This year was the biggest year of profits since the 1930's for the MPAA. They racked up 1+ billion dollars more than they normally do, so they have no claims of lost profits like the RIAA can. They also have found a runaway success in the easily crackable yet still preferably bought DVD medium. While people can download movies from the net, most prefer to go out and spend $8.99 for that two year old movie that they want to have on DVD. Rental services such as netflix (my only real vice) are a runaway success, and I will admit, I have yet to rip and copy any of my DVDs because its too much trouble.

      These guys just see the handwriting on the wall and want to nip it in the bud. I personally don't think its right that they are trying to infringe on our fairuse rights, but at least they are being more cooperative than the RIAA. They have taken the first tenative steps into online distribution that while faulty, is more than I can say for their musical cartel cousins.

      Someone needs to drag out all the stops in this case. i don't like the idea of having such a wide jurisdiction when sueing somebody, but for f#ck sakes, get Felten in there. Try and make the idea of playing DVDs on linux look like something regular folks do and not something that "hackers do". Show them that we only want the same rights and abilities that we had in the analog world, and that the powers that be are trying to strip them from us. If only the defense of Pavlovich/EFF could have an ask slashdot session could I truly think they would come up with a decent defense.

      I could see it now.....

      Defense lawyer: Your honor, I would like to say. First Post!

      --
      13 year old white supremacists are shitty web designers.
    3. Re:ReCSS by poot_rootbeer · · Score: 4, Offtopic


      Your remote keyless lock doesn't do you any good when I take a rock and smash your window in.

      No security measure is failsafe. Obviously the lesson to be learned here is "don't try".

      Signed,
      The World's Worst Sysadmin

    4. Re:ReCSS by captaineo · · Score: 3, Interesting

      You actually bring up a serious point. One question that often gets overlooked in the DRM debate is, "who owns the keys?" Most DRM systems only allow major studios to encrypt their works; there is no "home edition" of the cypher algorithm for independent artists to protect their own projects. (or if the algorithm is public, there is no way to get the keys needed for encryption).

      Thus the protection afforded by DRM is very asymmetrical, as opposed to copyright, which applies to all authors. (unless you crack the algorithm and distribute ReCSS...)

  4. what about my backups! by Tenchi-kun · · Score: 5, Insightful

    What I would like to know is how this is going to effect the consumer, because if I remember correctly, any consumer may create a copy of a movie/cd/software that they own and use that "backup" copy in order to preserve the orginal copy of the media. I remember the arguement that the MPAA had when VCRs initially came out, as well as the arguements about audio casettes as well. I don't see how making a copy of your DVDs, for your own personal use, is any different.

    I can understand that they are fighting this because you can send out bootleg copies of movies on the internet, but you have to wonder, if the internet wasn't as prevelant in the USA as it is, would we even be hearing about this?

    1. Re:what about my backups! by LostCluster · · Score: 4, Insightful

      The problem is the way fair use is worded. It's not "You have a right to create a backup." It's closer to "If you do create a backup, you haven't violated the law by doing so."

      The xxAA's can't ram through a law ending that backup exception, that'd smell funny and no representative would vote for it. So what they put instead into the DMCA is a restriction that makes it illegal to publish instructions on how to break any encryption when its used to protect a copyrighted work. If you can't decrypt the data in order to make your backup copy, it's impossible to make that backup copy.

      People aren't fighting for the affirmative right to make a backup copy for one reason... people falsely think we already have it.

    2. Re:what about my backups! by MImeKillEr · · Score: 4, Interesting

      What I'd like to see is someone suing the RIAA or any software company for blocking our rights as consumers from making said backups.

      Hell, I'd *love* to be able to make a decent working copy of MechWarrior 4 so I don't run the risk of scratching the original. I've tried CloneCD as well as a couple of others to no avail.

      Just *try* getting ahold of the author of works you own and have a legal right to make back ups of. Ask them how to go about copying their works for your archival purposes. Although I've never tried, I'm sure they'll likely laugh at you.

      --
      Cruising the internet on my TI-99/4A @ a whopping 300 baud!
    3. Re:what about my backups! by angle_slam · · Score: 4, Interesting
      The problem is the way fair use is worded. It's not "You have a right to create a backup." It's closer to "If you do create a backup, you haven't violated the law by doing so."

      That's not quite right either. You don't have a "right to create a backup. Nor are you exempt from the law by making a backup (with the exceptions of certain forms audio recording for non commercial purposes (The AHRA)).

      Fair use is defined here and does not include a right to make a backup copy. In fact, the copying of the entire original article is a factor against fair use.

      In fact, the Sony VCR case decided that time-shifting was a fair-use, under the assumption that people wouldn't be making a library of tapes.

    4. Re:what about my backups! by tswinzig · · Score: 4, Insightful

      This is why this whole case is stupid.

      The MPAA claims they want to stop pirates. But you don't need to decrypt a DVD's contents to pirate the movie. Just burn exact duplicates of the DVD you've already got. Your DVD player already has DeCSS built-in, so to speak.

      This is not about pirating or your ability to make backup copies of DVD.

      --

      "And like that ... he's gone."
    5. Re:what about my backups! by swillden · · Score: 5, Interesting

      Except that, as has already be stated multiple times, you do not need to break the encryption to make the backup.

      Except that, in practice, you do need to break the encryption to make a backup. The DVD-CCA has made it extremely difficult for consumers to obtain blank, writable DVD media that can be used for bit-for-bit backup purposes. How? Simple, the region of the disk where the disk decryption keys would be stored is not writable, so you can't copy that part of the original disk.

      Of course, large-scale pirates are completely unaffected by this limitation.

      --
      Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
    6. Re:what about my backups! by aufait · · Score: 4, Informative
      You don't have a "right to create a backup.

      I disagree. The link you provided shows that the copyright law allows consumers to make copies of audio recordings:

      No action may be brought under this title alleging infringement of copyright based on the manufacture,...of a digital audio recording device...or based on the noncommercial use by a consumer of such a device.
      And Section 117(a)(2) gives the owner of software the right to make a backup copy.

      --
      I feel like picking a fight with everyone who thinks they are right. - Rainmakers
    7. Re:what about my backups! by angle_slam · · Score: 4, Interesting
      Correct, you point to specific exceptions. The post I was replying to implied there was a general right that applied to all types of copyrighted works. Also, be careful with the AHRA. It is true that it says:
      No action may be brought under this title alleging infringement of copyright based on the manufacture,...of a digital audio recording device...or based on the noncommercial use by a consumer of such a device.
      But that statement is limited by the definitions in the act, such as:
      ''digital audio recording device'' is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use . . .
      From 17 U.S.C. 1001. The position of the RIAA is that:
      Multipurpose devices, such as a general computer or a CD-ROM drive, are not covered by the AHRA. This means that they are not required to pay royalties or incorporate SCMS protections. It also means, however, that neither manufacturers of the devices, nor the consumers who use them, receive immunity from suit for copyright infringement.
      From RIAA's copyright FAQ. Note: that link no longer seems to work. Check out my previous post.

      Note: I am not stating the copying is right or wrong, just stating what the law is and what the RIAA interprets the law to be.

  5. woah woah, hold your horses there! by smd4985 · · Score: 5, Informative

    i don't think the court has agreed to take the case just yet. it has just maintained the injunction until the court can decide IF it is going to take the case. furthermore, i'm not sure if the decision would in any way make a ruling on the DMCA.

    "A response from Pavlovich's attorney, Allon Levy, is due by the end of the day on Thursday. Because O'Connor is the Supreme Court justice responsible for cases arising out of California, she has the ability to place some decisions on hold until the complete court can meet and vote to take the case or deny the petition for review."

    --
    smd4985
  6. Outmoded business model by Peyote+Pekka · · Score: 5, Interesting
    The article mentions use of the phrase trade secrets. I suppose now they'll angle for use of the Economic Espionage Act of 1996 to keep the market place from changing.

    Seditious groups like the RIAA/MPAA are fighting a losing battle to try to back up outdated business models with legislation. Copy protection doesn't work, it's even been tried -- and later dropped -- by software companies like Lotus and Ashton-Tate during the 1980's. The role that RIAA/MPAA companies have played in the past has been as a channel for distribution. The Internet is a much more convenient distribution channel and they need to rework their business models to take that into account. DeCSS is perhaps so embarrassing for the RIAA/MPAA companies because it shows where they are falling far short of market needs -- DeCSS allows time-shifting or space-shifting, both of which are not just fully legal, but widely practiced and accepted.

    Free as in market...the RIAA and MPAA are hurting the U.S. economy.

  7. Spot the interesting omission? by Rogerborg · · Score: 5, Insightful

    According to this article, DeCSS is for "DVD-copying". It is "software that can be used to copy DVDs". It "allows encrypted DVDs to be descrambled". It "injuriously [affects] the motion picture and computer industries in California.".

    Now, all this is true (or debatable, for the last claim), but nowhere in this article does it even hint that DeCSS can be used simply to watch DVD's that you own, which (gasp!) is what I actually use it for. That's a worrying omission, and one which I hope doesn't signal a trend.

    --
    If you were blocking sigs, you wouldn't have to read this.
  8. Predictions... by assaultriflesforfree · · Score: 4, Interesting

    We granted review to determine whether the trial court properly exercised jurisdiction over Pavlovich's person based solely on the posting of the DeCSS source code on the LiVid Web site. We conclude it did not.

    That's from the California Supreme Court. In short, it tells what specific decision of the trial court that they are addressing - namely, they only addressed the matter of jurisdiction.

    So, the Supreme Court will almost certainly be limiting the appeal to that question as well. While they won't be addressing the details of whether or not the DVD CCA is within their rights to prosecute anyone, anywhere for this "crime," this case might mark an important decision in how far U.S. protection of big business extends through optical fiber.

    My prediction:
    *Bill Gates will be named amicus curiae for the case
    *Scalia will conclude that, since electrical pulses travel at nearly the speed of light, the distance between the LiVid servers and California will have shrunk to nothing, thereby placing the server within the jurisdiction of California.
    *Satan will invite Rehnquist to tea.

  9. I don't believe you can... by MyNameIsFred · · Score: 5, Informative
    IANAL, but it is my understanding that the arguments presented have to be directly relevant to the case. The issue appears to be whether the CA courts have juridiction. Furthermore, the defendent is NOT charged under DMCA, rather violations of trade secret laws.

    IMHO, any lawyer that brings up DMCA would look like an idiot. It should be noted that only a certain select group of lawyers can be present oral arguments to the Supreme Court. I am not sure what you have to do to become qualified, but I do know that you can't hire just any lawyer.

  10. NOT a DeCSS Case!!! by ca1v1n · · Score: 5, Interesting

    This is not a DeCSS case. This is a jurisdiction case. It is definitely news for nerds and stuff that matters, since internet jurisdiction is a really big deal. I doubt there will be much or any discussion of the DMCA in this case. Probably a good thing too, because you generally want your test case to be completely beyond reproach. Not that I think that Pavlovich did anything wrong, but something more along the lines of Felton's SDMI paper would be more attractive to the court.

    --
    WARNING: there is a trojan on your
  11. different case by Tom · · Score: 5, Informative

    Remember, this is about the jurisdiction question. It has nothing to do with the case itself, i.e. the SC would not decide whether DeCSS is legal or not.

    What this is about is that DVD CCA sued 77 people from two dozen US states and a dozen foreign countries, all in one fell swoop.
    As one of the defendents in question, I have to say it's got nothing to do with saving legal fees. We received an e-mail notification of the pending injunction less than 48 hours before it would have been signed. If you live somewhere in europe, have less than two days and the time difference working against you, there is little chance that you can do anything about it. Even had I gotten hold of legal council first thing next morning, my lawyer would have had less than 24 hours to investigate the relevant US laws, find a California lawyer to represent me and write up a defense.

    This was not at all about saving legal fees, it was all about steamrolling over as many people as you can manage to squeeze in.

    (fortunately, the idiots didn't know CC from BCC, so we got a full list of everyone sued, had all of them put on a mailing list within a few hours and the twits were greeted by EFF lawyers when they tried to get their court signature. The full story is somewhere on my website).

    --
    Assorted stuff I do sometimes: Lemuria.org
  12. Not really true by epepke · · Score: 5, Informative

    DeCSS isn't for copying, because you can copy DVDs without using DeCSS or any decryption. Just copy the pattern on the disc. Commercially available bulk copiers do just that. Hell, the large-scale means of producing DVDs are photographic.

  13. supreme court by creature · · Score: 4, Funny

    Supreme court is just like regular court, except it also has tomatoes and sour cream.

  14. Re:No longer a secret by MImeKillEr · · Score: 5, Insightful

    Personally as soon as I heard that DeCSS was banned I downloaded a copy just to prove to myself the futility of internet censorship.

    You and everyone else. Thats the great thing about the internet. Ban something and 1000+ people are going to download it and mirror it everywhere. The sooner the RIAA/MPAA/etc realize that the internet is not something they can control and that we, as consumers, are going to thwart their attempts to shut off the flow of information the better off they're going to be. I personally will dance the jigg if/when the RIAA and/or MPAA get bitchlapped in court.

    Hell, the idiot lawyers even included the source code for DeCSS in the court documents. There's no need for anyone to mirror it anymore!

    The link above is the Hoy filing from this page...

    --
    Cruising the internet on my TI-99/4A @ a whopping 300 baud!
  15. Supreme Court by Detritus · · Score: 5, Informative

    It doesn't take any special qualifications to be admitted to the Bar of the Supreme Court. Get your application here. I've seen these certificates on the walls of many law offices in Washington, D.C. There are about 180,000 lawyers who are members of the Bar of the Supreme Court.

    --
    Mea navis aericumbens anguillis abundat
  16. Misleading Summary by aufait · · Score: 4, Informative
    "CNET has posted an article claiming the US Supreme Court will take up a 1999 case involving individuals posting DeCSS on web sites based in the US.

    That is not what the article says.

    Justice Sandra Day O'Connor last week placed a ruling by the California Supreme Court on hold, a decision that effectively enforces an injunction until the full court can consider the case.
    The court has not yet decided if they are going to hear the case.

    --
    I feel like picking a fight with everyone who thinks they are right. - Rainmakers
  17. Disney says you don't need backups by swillden · · Score: 5, Interesting

    What I would like to know is how this is going to affect the consumer, because if I remember correctly, any consumer may create a copy of a movie/cd/software that they own and use that "backup" copy in order to preserve the orginal copy of the media.

    I noticed an interesting thing in the packaging that came with one of my kids' Disney DVDs last week: You can now register your purchases with Disney and, in return, they will send you a new copy of any registered DVD if the original gets damaged.

    On the one hand, this is a very nice benefit for the consumer: I don't have to bother finding ways to back up my DVDs, because if they ever get ruined, the company will ship me a replacement, at their cost. Of course, it only works as long as the company continues to offer the service.

    On the other hand, I have to wonder if this isn't just part of their strategy to eliminate Fair Use exemptions. "No, Senator, consumers do *not* have any legitimate need to make copies... Yes, of course we recognize that disks get damaged, which is why we've generously arranged to replace damaged disks, which is a much better solution for consumers since it requires no expensive technology, just a phone call or a letter... Thank, you, sir, yes we think so too... Yes, sir, our contribution to your campaign will be in the mail tomorrow."

    --
    Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
  18. "use of one case to target multiple people" by e_lehman · · Score: 5, Insightful

    The attorneys sought to sue more than 500 people from all around the world in one lawsuit brought in Santa Clara County, Calif. [...] The point is we would like to get the Supreme Court to affirm that the use of one case to (target) multiple people who are distributing information is appropriate," Kessler said.

    This is kinda scary. A major limitation on RIAA/MPAA is that they have to sue their enemies one at a time. Since each lawsuit is expensive and they have about 50,000,000 enemies, this is problematic. So they want permission to able to do a sort of "reverse class-action", where they're allowed to sue everyone at once. They started with a tidy block of 500 defendants, but why not 5000 in the next round? Or 500,000?! Woohoo!

    The courts are already too-often used by those who can afford lawsuits to bludgeon those who can not. Allowing corporations to sue hundreds or even thousands of people at once would be a disaster for the American legal system and America in general.

  19. almost there... by bill_mcgonigle · · Score: 3, Insightful

    Just to clarify, DeCSS does not help making backups (defined as an exact copy). In fact, it's nearly impossible for the consumer to make a backup of a typical commercial DVD. The biggest problem with making backups at home is that there is no DVD-R method for making DVD-9's. The big illegal copying shops can handle this, of course. Whether this situation is technological or a result of cartel collusion is an excercise for the reader to determine.

    What DeCSS does is enable fair use.

    Keep repeating that over and over until you're blue in the face. Maybe somebody will hear it eventually.

    disclaimer: yes, you could re-master the data from a DVD onto multiple DVD-R's, but that's not what most people mean by 'backup'.

    --
    My God, it's Full of Source!
    OUTSIDE_IP=$(dig +short my.ip @outsideip.net)