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

[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

[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 :-)

Breaking, entering, and stealing?

[shish]

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

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.

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: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?

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.