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

Right...

[g0at]

DeCSS is a burglary tool just like how I'm actually growing dildos in my vegetable garden.

Re:Right...

[Shenkerian]

I believe many, if not all, states restrict the sales of lockpicks and key-cutting machines. So there is precedent. I don't think it's being appropriately applied here, though.

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???

No surprise

[DrTentacle]

Bunner said he originally posted the code so that people could use it to play their DVDs on the Linux operating system, a practice that was all but impossible at the time.

Unfortunately, with no large corporate backing at the time, legitimate uses such as this would of course be ignored. When large corporates think they are losing money, the government will come down on their side time after time.

Let's hope that uses such as this can be viewed as more legitimate now that the OSS movement has some large backers - IBM and the like.

Re:Doesn't it seem odd...

[Hypocritical Guy]

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"?

This makes me so angry I want to go shoot someone!

Again, you dont need DeCSS to copy a DVD

[Sigurd_Fafnersbane]

Again, you dont need DeCSS to copy a DVD, you need it to be able to decode its content.

Making a bit by bit copy of a DVD will play flawlessly in any DVD player, no problem. The problem comes when you want to build your own DVD player, then you need DeCSS.

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

[Sigurd_Fafnersbane]

One could add that having DeCSS would enable you to rip a DVD and make a un-encrypted copy. In this respect it could be used for circumventing the copy protection. Nevertheless I will risk the claim that 99.9% of the people using DeCSS is doing so to watch DVDs they have purchased for their hard earned cash.

If you wanted a pirated version it is easier to download one than to make one yourself;-)

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

[stratjakt]

You can copy the vob file to your HDD and play it back with powerdvd or other licensed DVD playback softwares.

So you could go ahead and trade around the encrypted movie and watch it, no problem.

Even with a super duper mega unbreakable encryption, you could still framegrab the video and encode it into divx or whatever. You're downsampling and losing quality either way, it's really six of one, half dozen of the other.

This doesnt stop movie trading, it just prevents the MPAA from collecting CSS licensing for DVD playback devices, and takes away their power to impose region locks on the movies.

It's a strawman argument to protect their artificial regional targetted marketting.

CSS doesn't control Piracy

[More Trouble]

If you want to "pirate", aka make unauthorized copies, of a DVD, just image it. CSS doesn't hinder you one iota. That's not what it's for. It's for forcing users to use licensed players. And, more over, it's to force users to obey region encoding. Neither of these have anything to do with movie's intellectual property.

:w

Re:This again???

[krystal_blade]

No, the argument against "Vicious Rectal Colonizing" is what spawned the revision of personal property laws versus the common good.

That argument still gets around from time to time though.

krystal_blade

Re:Doesn't it seem odd...

[fobbman]

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

Piracy is such a harsh word

[scubacuda]

I prefer to call it

(hand over one eye)

ARRRRRR-chiving!

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?

so now it's a trade secret?

[anonymous loser]

An interesting point from the news.com article:

During Thursday's hearing, DVD CCA attorney Robert Sugarman told the seven-judge panel that the software is designed "to allow individuals to steal a trade secret and, by virtue of that, hack into a system that protects the trade secrets of motion picture makers."

How did this go from stealing copyrights to stealing trade secrets all of a sudden? Exactly what part of the DVD is a trade secret? It can't possibly be the encryption, because nobody's interested in that part, they want the content. The content itself is certainly no trade secret, since it is widely distributed and available to anyone with a Blockbuster card.

Re:Doesn't it seem odd...

[scubacuda]

While funny (and applicable), that story is bogus.

Claim: Questioned about the wisdom of teaching Boy Scouts to use firearms, a US General points out the difference between being equipped to do something and doing it.

Status: False.

Example: [Collected on the Internet, 1999]

This is an extract of an National Public Radio (NPR) interview between a female broadcaster and US Army Lieutenant General Reinwald about sponsoring a Boy Scout Troop on his military installation.

Interviewer: "So, LTG Reinwald, what are you going to do with these young boys on their adventure holiday?"

LTG Reinwald: "We're going to teach them climbing, canoeing, archery, and shooting."

Interviewer: "Shooting! That's a bit irresponsible, isn't it?"

LTG Reinwald: "I don't see why, they'll be properly supervised on the range."

Interviewer: "Don't you admit that this is a terribly dangerous activity to be teaching children?"

LTG Reinwald: "I don't see how, we will be teaching them proper range discipline before they even touch a firearm."

Interviewer: "But you're equipping them to become violent killers."

LTG Reinwald: "Well, you're equipped to be a prostitute, but you're not one, are you?"

End of the interview

Origins: As great a tale as this is, it's pure fabrication. It began life in 1999, purportedly about an "LTG Reinwald" of the US Army. In 2001 it reappeared, this time attributed to "Marine Corps General Reinwald."

The U.S. Army denies that there is a Lieutenant General Reinwald and chalks the whole thing up as a hoax. (Which is as logic dictated all along; if an armed forces spokesperson ever gave voice to a sexist remark likening a female interviewer to a prostitute, that officer would soon be called upon to make a very public apology as well as face charges within ranks for conduct unbecoming.)

National Public Radio had this to say about the matter:

We are aware of an erroneous story posted on the Free Republic Website, and possibly elsewhere, which mentions a supposed interview between an unnamed NPR reporter and a U.S Army Lieutenant General Reinwald. The story is false -- the dialogue mentioned was not an NPR interview, and it never aired on any NPR program.

Those who like their guns and who believe responsible gun ownership begins with teaching young people the right way to handle firearms at an early age have a great fondness for this story. As well they should, because this anecdote illustrates in a humorous way the difference between having the ability to do something and that ability dictating life choices.

The "Reinwald" story existed as a joke as far back as October 1997 when it appeared on a number of web pages in the following form:

Excerpt from a recent live radio interview on one of the regional Welsh stations:

A female newscaster is interviewing the leader of a Youth club:

Interviewer: So, Mr. Jones, what are you going to do with these children on this adventure holiday?

Mr Jones: We're going to teach them climbing, abseiling, canoeing, archery, shooting...

Interviewer: Shooting! That's a bit irresponsible isn't it?

Jones: I don't see why, they'll be properly supervised on the range.

Interviewer: Don't you admit that this is a terribly dangerous activity to be teaching children?

Jones: I don't see how, we will be teaching them proper range discipline before they even touch a firearm.

Interviewer: But you're equipping them to become violent killers.

Jones: Well, you're equipped to be a prostitute but you're not one are you?

Needless to say, the interview was terminated almost immediately.

Notice the differences that have taken place between the two tellings:

* "Abseiling" has been taken out of the Americanized version (probably because whoever altered the text didn't know it was a r

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.