DeCSS Arguments in CA Supreme Court Case

scubacuda writes "According to News.com, California Attorney General Bill Lockyer called DVD-cracking software DeCSS a tool for "breaking, entering and stealing" during a hearing before the California Supreme Court on Thursday. "The program DeCSS is a burglary tool," Lockyer told the judges, adding that the movie studios lose millions of dollars because of piracy over the Internet. (CopyLeft offers this "burglary tool" on a t-shirt)" If you've forgotten what this case is about, see EFF's page about it.

Comments

Hrmm

[acehole]

Well... shall we ban any tools that can be used for breaking and entering then?

* screw drivers
* crowbars
* keys
* bits of metal
* credit cards

please, cuff me and send me to the bighouse, i've got a tool shed!

Re:Hrmm

[MrNemesis]

The problem is that all those tools have many legitimate uses.

Despoite being wrong IMO (and most of yours too I imagine), DeCSS is still seen by the masses as being solely for the purposes of theft.

Re:Hrmm

[tomhudson]

What it's seen as by the masses is irrelevant. DeCSS or something similar is required if you want to view a DVD that you bought and all you have is a Linux box. This is a legitimate use, just as hammers and shovels and pry bars also have legit uses.

Re:Hrmm

[ichimunki]

Actually I don't think the masses would even know what you were talking about if you started talking about DeCSS. Hell, half of the masses don't even have the internet at home. A great number of them don't have a computer either. And while DVDs are taking off, I doubt very many folks are going to be able to discuss this past "well, if you want to watch DVDs, why don't you just buy a DVD player, they're like $100 at Target?" Besides, the masses aren't going to be the ones making this decision in the courts. And in this case, we're lucky, judges, by their very nature have far more education and access to the funds to buy computer stuff than the average American, and are therefore, more likely to be able to understand what DeCSS is all about.

Unfortunately, I'm guessing most of these same judges have themselves or had one of their children download Kazaa, and therefore they've seen that the primary use of P2P seems to be copyright infringement... and then to top that off, they're going to link things like DeCSS as a necessary first-step in that infringement chain. The real question is: can the pro-DeCSS lawyers overcome this impression?

Re:Hrmm

[jgerman]

Sorry, just because the MPAA and DVD Consiortium think they can tell me on what device I can watch my legitimate purchase doesn't mean that they actually can. I paid for the DVD, nothing else. The copy protection argument is nonsense. I paid for the right to view this media and dammit I will in whatever form I choose. If I cross the line and copy it for distribution, then you can complain, but until that time they can bite me.

Re:Hrmm

[dh003i]

Fuck that bullshit. I have the right to watch any DVD I pay for anywhere on any system on of my choosing, using any DVD-viewing tools.

It's really simple. I buy a DVD. I own that DVD. I thus have the right to watch that DVD, however fucking damn well I please. Let's not let MPAA double-speak confuse the only relevant issue, which is my right to watch a DVD I've purchased on the platform of my choice, using the tools of my choice.

Re:Hrmm

[molarmass192]

IANAL but I imagine stealing a key and then using that key to gain unauthorized access with still be B&E.

Right, however, in order to VIEW an encrypted DVD you MUST bypass the copyright protections. This is true by definition for any player/platform. DeCSS has a legitimate use for this particular purpose. The fact that it CAN be used to decrypt DVDs for the purpose of copying them is another matter altogether. I'm sure 99.9% of the time DeCSS is used it's used for VIEWING and not COPYING.

<rant>
Now that that's said, I think it's pathetic that the MPAA relies on encryption for DVDs. History has shown over and over that ALL encryption that is decryptable is breakable by definition. They should stop this nonsense and start prosecuting when they find copyright theft. Anyhow, most DVD copyright theft is probably a straight rip, encryption included. So in effect, the encryption is utterly useless anyhow.
</rant>

Re:Hrmm

[Theatetus]

DeCSS is a tool, just like a hammer, or an alligator.

More to the point (AFAIC), it's an expression of an algorithm. It's simply a description of a mathematical process.

Come to think of it, the *source* to DeCSS is not really a tool at all. You can't use the source to watch DVDs. I could maybe see justification for classifying DeCSS binaries like lockpicks and slimjims, but the source is more like the description of how to make a lockpick.

Re:Hrmm

[tomhudson]

Lets look at your points one at a time:

The MPAA and the DVD consortium make no secret about CSS's existance and their region-encoding scheme,

It doesn't say it anywhere on any of the packaging. Not only that, but most consumers aren't aware of it.

...and anyone competent and aware enough to run Linux has no excuse to not know this.

So if I set up a computer for my nephew, you're saying I should lock him into Windows? So we have, according to your arguments, an anti-trust product tie-in. Here we go again ... :-(

If CSS is a legitimate tool, and region-encoding / player certification are legal business tools, then DeCSS is not a legitimate use

The legitimacy of one has nothing to do with the legitimacy of the other. The vendor cannot prescribe how I use the product once I've purchased it. I own it, and if I want to use it as a frisbee, that's my choice.

public perception is relevant to legal decision.

The law is not a poll. The courts have taken, and will continue to take, decisions that are unpopular with the public at the time, based upon what the law states, not on public opinion. Judges that rule based on solely on public opinion are simply not competent.

If a noticable majority percieved DeCSS as a free speech issue, few courts would treat it as something else.

So, if a poll comes out stating that a noticable majority thought that it was ok to discriminate/kill/beat up on (insert group here), the courts would go along with it? Come on... Not to be mean, but you're actually making my point :-)

Re:Hrmm

[tomhudson]

Good point. Just like a knife in the kitchen is just a cutting tool, but when I stick it into someone's chest, it becomes a deadly weapon. Even binaries are useless unless they're actually running on the host system, ore one capable of emulating it.

Maybe they should hook up w. SCO. Look at the commonality:

1. They both don't want you accessing the source code.
2. They both want you to pay licensing fees for womething you don't need.
3. They both have used/are using the same lawyer (Boies).
4. They both can't come up with a business model to suit changing conditions.
5. The both are using the courts to try to fatten their bottom lines.
6. The both love FUD
7. They both need a serious beating with a clue-stick.

Re:Hrmm

[CyberGarp]

IANAL but, for a contract in the United States to binding it requires two things:

• A signature by both parties
• An expiration date or term

When I goto the store and buy a DVD with cash, I didn't sign a damn thing. No contract, NADA. Othewise, I could write contracts on the bottom of rocks that say, "If you picked this up you owe me your first born son."

Re:Hrmm

[Art Tatum]

If CSS is a legitimate tool, and region-encoding / player certification are legal business tools, then DeCSS is not a legitimate use. Even if it's found to be legal and legitimate somewhere, it may still be illegal somewhere else.

The only reason DeCSS could be illegal is the circumvention portion of the DMCA. The only thing protected here is copy prevention schemes. Congress specifically got rid of the access prevention protection.

You can still use access prevention schemes, of course; but it's not a violation of law to bypass one. And CSS only prevents access.

Re:Hrmm

[bigpat]

"Right, however, in order to VIEW an encrypted DVD you MUST bypass the copyright protections"

words are legally very meaningful here, really what you meant to say is that you must 'bypass the COPY protections'

Copyright is a legal right to copy and should have nothing to do with ones ability to copy.

Most of us here are arguing that one way or another we should be allowed the ability to copy content, while understanding that we don't have right to copy, until the copyright expires, except maybe for personal use once we have purchased a copy.

This should be a simple case of reason, copyright law gives us a right to copy content after a certain period of time... this right cannot be realized unless we have the ability to copy that content. So, in a very real and basic way copy controls deprive people of their right to copy. The laws that prevent people from circumventing these copy controls are inherently corrupt.

Corrupt doesn't mean that people were paid off to push these laws through, which may or may not have happened, but they are corrupt laws because they contradict the very basis of our understanding of Copyright. Creators have a time limited right to legally control and profit from the distribution by copy of their work. After this period of time it is part of the public domain and we have a legal right to copy it and distribute it if we please.

A consistent and equitable law would ban copy controls all together, not seek to outlaw their circumvention.

Re:Hrmm

[Kintanon]

Now, before you get all riled up, think about this. Two people can enter an agreement. I can write a book, and say that I will only sell it to people who will read it only while standing up, facing due north. We can codify that, put it into a contract, and if we both sign it under the right circumstances its binding. You and I have both agreed to exchange money for an object and a right.

The important point in your statement is the word CONTRACT. You see, I never signed any contract, nor entered into any agreement with anyone when I purchased my DVD. I gave 20$ to the guy behind the register, he put the DVD in a bag, and I left with it. I didn't sign any agreement saying I wouldn't watch the DVD on linux, or smash it with a hammer, or anything.
So unless I'm actually performing an already illegal act (Like sharpening the edge of the CD/DVD and stabbing people with it, or making copies and selling them) then there's nothing that can stop me from doing what I want with the DVD.
There is not a legal prohibition against watching DVDs on linux. There is not a law that says I am performing an illegal act. So, since there was no contract, I've violated no contract law, and since it's not illegal to watch a DVD on Linux (I promise you, it's not. I've checked with quite a few lawyers and judges), I'm not doing anything illegal.
No copyright infringement is taking place as I'm not copying the work nor am I purchasing an illegal copy of the work. No breach of contract as I never entered into any contract, no legal issue at all.
The only POSSIBLE legal issue is the DMCA issue. And I'm pretty sure it doesn't actually apply to home viewing of a video in this fashion though that hasn't been established by the courts yet.

Kintanon

Re:Hrmm

[mbogosian]

You're arguing the MPAA side - they don't sell you a copy of a movie, they sell you a disc which may have something on it, which may resemble a movie, and which can be used only in approved devices. The Linux side is arguing that they are buying a copy of the movie so that they can watch it on their computer.

If that's true, then they're effectively licensing the content to you which means that you should be able to make a copy of the content for backup purposes (for which DeCSS may be used as a legitimate tool), and/or the publisher should make available to you that content at cost for the media only should your media ever become damaged or unplayable. As we know they want to legislate against these too. I'm sorry folks, but you're either selling a license or a copy of the content. You can't have it both ways.

- = - = - = -

To the Office of the Attorney General for the State of California:

I am writing in severe distress over what I consider to be an outrage in the State of California Office of the Attorney General.

Recently, Attorney General Bill Lockyer called certain DVD viewing software "a burglary tool", (see http://news.com.com/2100-1025_3-1011326.html). This is coming from the Attorney General of a State at the forefront of the Antitrust Trial against Microsoft.

As a consumer, I choose my purchases carefully and exercise my rights to the fullest extent of the law. I refuse to run any Microsoft product on my home computers. Instead, I run Linux. I enjoy viewing DVDs that I have purchased legally on my computer. Software such as DeCSS allows me to do that. By referring to it as "a burglary tool" Bill Lockyer is effectively calling me a burglar for watching my own DVDs, to which I take great offense. I am hereby revoking any support I have of Mr. Lockyer and will be sure to educate anyone I know about his efforts to restrict the rights of consumers.

The MPAA is behaving very much like the software industry did (erroneously) in the 80's and early 90's. They have effectively attempted to enforce a "license" on the consumer restricting where, when and how material stored on media such as DVDs can be viewed. However, if my DVD wears but or becomes scratched and unviewable, then neither the publisher nor the MPAA will replace that media. I have to go out and purchase a new copy (effectively an additional license) at full price.

They can't have it both ways. They must either eliminate the use of the effective license, or they must allow copying for purposes of backup and/or replacement of destroyed media at zero profit to the consumer. Any failure to do so constitutes theft against the consumers of California and this Nation. By supporting them, Mr. Lockyer may be counted among them as an accessory.

This again???

[Bull999999]

Didn't they use the same exact argument when VRCs came out?

Doesn't it seem odd...

[Nu11.org]

That a tool that allows people to copy their DVD's for their own purposes is "a tool for burglary", yet a gun which allows people to kill other people is a "right"? Null

Re:Doesn't it seem odd...

[fobbman]

Software doesn't pirate DVDs...PEOPLE pirate DVDs.

Re:Doesn't it seem odd...

[s20451]

Although this seems like a troll, it really isn't. In recent years, both before and after Sept. 11, the US government has passed a raft of legislation curtailing and limiting the 1st Amendment, to the general apathy of the population. Meanwhile, any suggestion of curtailing the 2nd Amendment, however mild, is met with howls of protest.

Wouldn't it be nice if the ACLU was as politically powerful as the NRA?

Disclaimer: I am a Canadian.

Re:Doesn't it seem odd...

[Anonymous Coward]

any suggestion of curtailing the 2nd Amendment, however mild, is met with howls of protest.

If faced with creeping tyranny, wouldn't you want to be armed, just in case?

Re:Doesn't it seem odd...

[TamMan2000]

Didn't help the iraqis...

Disclamer: I am not against the 2nd amendment, it is just that that argument is freakin' weak...

Re:Doesn't it seem odd...

[dameron]

>>any suggestion of curtailing the 2nd Amendment, however mild, is met with howls of protest.

>If faced with creeping tyranny, wouldn't you want to be armed, just in case?

To paraphrase a jurist I heard on the radio recently, the 2nd Amendment isn't our great bulwark against tyrany, the 1st Amendment is.

The upcoming stealth FCC media consolidation deregulation poses a far, far greater threat to democracy than the most rabid gun control advocate.

-dameron

Breaking, entering, and stealing?

[shish]

It may break encryption, but entering and stealing? WTF???

Slim Jims

[L. VeGas]

I can buy slim jims at my local auto parts store.

Politics, duh.

[mjmalone]

"Lockyer, who's gearing up to run for governor next year, appeared on the side of the DVD Copy Control Association"

Of course he is on the side of the DVD Copy Control Association, he is on the side of the movie studios... They have deeper pockets and are more likely to win him the election then the technogeeks in silicon valley's burst bubble...

Logical Conclusion

[cybermace5]

Computers are a tool for burglary, let's ban those.

Its a necessary tool.

[haystor]

The argument needs to be made that the tool is necessary to provide backups of data as the physical media will deteriorate before the copyright expires. After all, the purchaser has a license to the copyright material its not just physical ownership of the disk.

Of course the MPAA could argue that copyright expiration is so far in the future that any consideration of post-expiration is ridiculous. And I might agree.

The Boston Strangler Returns

[Effugas]

"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."
--Jack Valenti, head of the MPAA, in congressional testimony.

Who's burglarizing who? I buy a car, I get the keys. Ford doesn't have the right to tell me where I can drive; I bought the car, and I bought its keys. If they come in and take the keys away from me, am I not the victim of burlary?

Too much intellectual property handwaving. Sellers don't have authority over buyer's uses, as some rather racist folks in whitebred towns discovered as their old homes were bought up by upwardly mobile *gasp* minorities.

--Dan

Re:Number of daily downloads

[stratjakt]

Worldwide?

Take all the irc channels, ftp pubs, kazaa, usenet. Say 1000 sources with 350 downloads per day.

It sounds about right. No doubt he also includes legitimate downloads like divx.com in his math.

Also realize, though that 99% of that is porn. The number gets pretty realistic, conservative even.

A huge piece of what's wrong with our legal system

[reverendG]

I think that a huge piece of what's wrong with our legal system is the blurring of facts, charging issues with emotion, and obscuring real issues. By saying things like "burglary tool", Lockyer is taking a piece of software and equating it with something the violates the security of an everyday middle class citizen. Admittedly, this is exactly how you should sway a jury in today's legal system. This is also why today's legal system is so fsck'd up.

The truth of the matter is that DeCSS is no more a burglary tool than a Dremel tool, and a middle class jury, who doesn't sit on media corporation boards, isn't going to give a damn about this case. The only way to make them care is to charge the issue with the illusion that someone is going to be "breaking, entering, and stealing" into their house to abduct their kids.

Unfortunately, although Lockyer is successfully relating the issue to something that the jury may be able to comprehend, he's also hopelessly obscuring the truth, and most middle class people aren't going to know the difference between a codec and a hole in the ground, so they aren't going to be able to discern the deliberate obfuscation.

Judges should be educated about technology before trying cases like this, and then prevent counsel from either side from making misleading statements like this. This would greatly even the playing field in the legal arena, and probably stop many of the misinterpretations of the DMCA. If all judges who deal with technology could be educated to at least being literate with the terminology, they would be able to dismiss legal actions that try to use the DMCA in a way that it wasn't intended (if there is such a thing).

Re:Good point.

[JJahn]

Unfortunately, both the Democrats and Republicans brought us the PATRIOT act.

Re:Again, you dont need DeCSS to copy a DVD

[visualight]

If that's true, then why was there ever a problem in the first place? Surely this was brought up so many times back when this first started with 2600. Even the MPAA must realize that DeCSS is not necessary for copying DVD's. So while the MPAA and their bribed politicians are claiming it's a burglary tool in court, the reason they went to court in the first place is probably something else. Like that fact that with DeCSS you can watch a movie on an UNLICENSED player.

For the MPAA (though they won't say this in court), this has nothing to do with copy prevention, but everything to do with the when, where, and how you watch a film you paid for. Obviously this is important to them or they wouldn't have dreamed up Region Codes.

How the hell do you get to be a State Attorney General and not have the mental ability to see straight through this?

AAAARRRGGHHH!!!

[wurp]

I can't believe so many people have replied to this, and not pointed out -- DeCSS IS NOT ABOUT COPYING DVDs!!!

DeCSS is about watching DVDs that I paid for on machines not approved by the MPAA, for example my two linux machines.

It also gives you back the fair use rights that the movie industry is trying so hard to steal, but the primary use for DeCSS is to watch movies on linux.

The only way DeCSS even helps DVD copying is that it allows you to do lossy compression you couldn't otherwise do. DVD "copy protection" doesn't in the least keep you from copying a DVD. I can easily copy a DVD and view it without using any unapproved decryptor.

Re:AAAARRRGGHHH!!!

[Overzeetop]

Actually, DeCSS circumvents a copy-protection feature of a commerically produced DVD which inadvertantly prevents the end user of a purchased product from a legal use of said product.

Before you cry foul, the "feature" was intended to prevent the viewing of a DVD on an unauthorized system (one which has no macrovision or region encoding, for example, which is TRUE for region 1 DVDs based on current law, AFAIK).

Nonetheless, you have purchased a product - not a licence. If your DVD breaks in five years, they will not replace it for a nominal media cost, nor will they send you new media should your system change (OTOH, microsoft used to send you 3.5" floppies if you licenced their software and you got it delivered on CD).

Once you've bought it, you should be able to do anything you want to with it, as long as the product (physical disc and information therein) stays with you and, arguably, your immediate family. You can even use it to shim up that door frame that's a bit out of whack. Of course, if it doens't work to shim the door frame, you won't get your money back, as it's not the intended use of the product. If , even with DeCSS it doesn't work on your PC - once again - you won't get your money back. If you put it in your DVD player and it doesn't work, you can take it back and get a replacement, because that IS the intended use.

Try this analogy: you may purchase a lock from Quickset, sit on your living room floor, and pick the lock all you want. You are circumventing their mechanism without a licenced key, but it's your lock and your home. The law has not been broken.

Wrong

[Pendersempai]

There are no juries in a state Supreme Court. He was making the argument to a justice, who can be expected to understand issues enough not to fall for such rhetoric.

The "middle-class jury" you so disparagingly reference is not making any major policy changes; they're deciding on findings of fact and leaving the actual legal maneuverings to the trial judge. Beyond that, most sweeping decisions are appealed.

Judges should be educated about technology before trying cases like this, and then prevent counsel from either side from making misleading statements like this.

To a large extent, judges ARE educated about technology before trying cases like this. And why should they "prevent counsel from either side from making misleading statements like this" when they could simply RECOGNIZE them as misleading and NOT BE MISLED?

Yes, the system may have its faults, but the ignorance of your post makes it abundantly clear that you're not one to prescribe fixes.