I must say I agree with the general tone of the article. Many of the ads I've seen in gaming magazines, and even in game developer magazines, are simply tasteless.
There are two ads in particular which come to mind: One by ATI, showing nothing but a synthetic woman (evidently from some published game) with an almost unlawfully short skirt clutching an Uzi to her chest; and another for TrueMotion 2X, which has another synthetic woman in a pose about two pixels away from flashing her genitalia. The recent ads for LightWave 6 aren't much better, which feature two synthetic females in the foreground who are all cheesecake and no art. (And then there's the ads for Ventriloquist, which aren't offensive, just disturbing.)
I admit this is all very subjective; some of the stuff I find interesting would probably have some of you on the phone to the authorities. So I would encourage the marketroids at game companies -- and other companies as well -- to avoid stuff that's crass and exploitive. It's too easy, and suggests laziness in your creative department. Try to be more original and artful.
NB: To paraphrase Dave Barry, I swear I am making this up.
It's fairly evident that someone within the motion picture industry has taken it upon themselves to attempt to disrupt meaningful discourse on the issues by spamming Slashdot with large, irrelevant posts. Already there's a megabyte of spam on this topic.
It's interesting that this is precisely the same tactic employed by the Scientology cult way back when, when it spammed USENET groups in an attempt to drown out criticism of the cult's harassing, deceptive, and illegal activities.
It's even more interesting to observe that, if the movie industry finds itself compelled to resort to such juvenile, cowardly tactics, it must be because they recognize the fundamental indefensibility of their position. If their position had any merit, they would engage in meaningful discourse with the rest of us, rather than resorting to peurile antics.
Why THE HELL would we want to change our genetic makeup?
Because it may be the next step in our evolution.
Some science fiction writers have speculated that, when a species becomes intelligent enough, messing with its own wetware is the next logical step. After all, it was a natural process of evolution that led to the species becoming intelligent enough to understand genetics at all; why should subsequent deliberate manipulation of those genetics be any less natural?
And even if we take control of physical evolution, social evolution will carry on "naturally" much as it always has. Just a few hundred years ago, people thought slavery was fine, and that the Earth was flat and the center of the universe. We have evolved beyond it. We will evolve beyond this, as well.
Yes, the possibility fills me with unease, just as did global thermonuclear destruction. It may take a generation or two, but I suspect we'll learn to cope fairly well with this new power we've unleashed upon ourselves.
Today, the DVD Copy Control Association and the EFF once again met in court, this time to argue for and against the ordering of a Preliminary Injunction against, basically, the entire Internet, forbidding further dissemination of DeCSS, the source code module that decrypts DVD MPEG streams. After today's hearing, there should be no doubt in anyone's mind that shrinkwrap license "agreements" are monsterously unethical and should on no account be allowed to stand.
It is worth noting up front that I am an adamant, vociferous opponent of these so-called "agreements", so I hope the reader will excuse some editorial bias. (Individuals interested in my editorial on the subject can find it here.) Also, events in court did not occur strictly in the order I will present; I will be grouping together related concepts to make them easier to compare.
Court began promptly at 13:30, and counsel for plaintiff and defendant introduced themselves (the names went by too quickly for me to get most of them). Judge Elfving indicated that he would not render his decision today, but would rather consider the arguments and filings before him and render a decision at a future time. He was unwilling to commit to a specific date, but indicated that it would not be overlong. Judge Elfving then invited plaintiff's counsel to present their argument.
Jeffrey Kessler began his argument with the following question: Can a user extract trade secrets in violation of a shrinkwrap agreement? A lot of other arguments were presented, but it seemed to me that the DVD CCA's entire case proceeds from this single precept.
In order to prevail in a trade secret violation, the plaintiff must show:
That a trade secret exists. Trade secrets must posess information, must derive value from their secrecy, and that the secret's owner must employ reasonable measures to protect that secret.
The secret was misappropriated. CCA argues that "improper means" were employed to create DeCSS.
CCA's contention is that the reverse engineering employed to discover the CSS algorithm was prohibited by Xing's shrinkwrap license "agreement". (Kessler reiterated this point with some force throughout the proceeding.) Since the reverse engineering violated this contract provision, the algorithm discovered within was improperly obtained due to breach of contract, and is therefore a trade secret violation. DVD CCA therefore argues that they are entitled to a Preliminary Injuction forbidding further dissemination.
Kessler went to a lot of trouble establishing that the original source of DeCSS was Xing's player. An expert's affadivit asserts that the original DeCSS release contained only Xing's key, suggesting that it was the Xing player that had been reverse engineered. Presumably, by establishing Xing to be the original source, they can invoke Xing's "license" that prohibits inspection.
Kessler made the assertion that, even if the "clickwrap" license had somehow been avoided, it still applies and is in force, since the license stipulates that assent to the contract is made, not by clicking on "OK", but by installing and using the software.
Kessler also seemed to go to some lengths to attempt to establish when DeCSS made its first appearance, which appears to have been the binary-only release on 6 October, 1999 from the group M.O.R.E. (Masters Of Reverse Engineering). Subsequent to that, Stevenson's work (where he attacks the hash rather than the keys) appeared around 25 October, 1999. I presume he did this in an attempt to establish that any release subsequent to these dates "must" have come from the "improperly obtained" algorithms.
DVD CCA cited several court cases supporting their petition for a Preliminary Injuction, which were granted forbidding further dissemination of materials under dispute (notably, the Religious Technology Center (Scientology) vs. Netcom). Kessler further asserted that no court case has ever held reverse engineering to be proper.
Kessler also cited the recently effected Digital Millennium Copyright Act which, as a matter of "public policy", forbids reverse engineering. However, he went on to state that DVD CCA is not bringing suit under the DMCA; they are bringing suit under the Uniform Trade Secrets Act.
The plaintiffs also asserted that the "hacker community" clearly knew that DeCSS was obtained improperly, and proceeded to quote from postings in Slashdot discussion fora made back in July where random people opined that a DVD player for Linux might not be legal to develop. (There were no in-court mentions of Natalie Portman or hot grits.) Kessler asserts that this public discussion validates their claim that the defendants "should have known" DeCSS is illegal.
The plaintiff also stated that the fact people may have been trying to develop a DVD player for Linux is entirely beside the point. Moreover, he stated that DVD CCA was not discriminating against Linux, that they were more than willing to license CSS to any "credible party" who wanted to develop a DVD player.
Finally -- and I think this is fairly significant -- DVD CCA made the observation that, if this were a copyright case, there might be a provision for reverse engineering under the Fair Use doctrine. However, there is no such provision in Trade Secret law, and the reverse engineering is therefore improper.
Kessler then turned the floor over to Robert Sugarman, who proceeded to disparage the EFF's First Amendment arguments. He repudiated the assertion that the defendants were news sources, and that they should not be accorded the protections available to newspapers. He asserted that the defendants are doing much more than engaging in First Amendment-protected discussion on this issue.
He repudiated EFF's citation of the Bernstein case. Copyright was at issue in Bernstein; this is a Trade Secret issue.
He also likened the obtaining of the DeCSS algorithm to breaking into Coca Cola's inner sanctum and stealing a copy of their secret formula. (In fact, the analogy of Coke's secret formula figured prominently in the plaintiff's arguments.)
Then he dropped a small bomb and stated outright, in open court, that they seek to enjoin not only hosting of the DeCSS code, but links to the DeCSS code. He asserted that, because links provide "instant access" to the disputed material, they should be forbidden as well.
He attempted to discredit the Open Source (nee "Hacker") community's motives by bringing to the court's attention the DeCSS Distribution Contest, and Copyleft's new DeCSS t-shirts, painting it as juvenile and irresponsible.
For some reason, he also called attention to the recent cracking of PacBell's ISP accounts, and CDUniverse's credit card database. Presumably, he was trying to associate the criminal activities of these individuals with the activities of the defendants in the case, both of which "clearly" demand decisive action from the court.
Finally, Mr. Sugarman asserted that, if a Preliminary Injunction is not granted, the message it will send is:
Theft of trade secrets is OK,
IP law is no longer viable,
It is "not safe" to publish in digital media.
These remarks by the plaintiff's counsel consumed about an hour and a half. Judge Elfving called a 15 minute recess, after which counsel for the defense began.
The first guy (whose name I did not catch) seemed to rely more on bombast and specious details than on concrete questions of ethics and law. Nevertheless, he did raise some interesting points.
The Scientology case was raised again, this time to point out that the Preliminary Injunction granted and affirmed in that case applied only to one person, not to the entire Internet. He went on to cite the cases of Sega vs. Accolade and Vault vs. Quaid, cases in which reverse engineering was upheld as permissible.
He asserted there was only one real defendant in this case, the one who allegedly did the "dirty deed": Mr. Johansen of Norway who originally developed and published DeCSS. If there is indeed a legitimate action that can be taken, it is solely against this individual.
He turned the plaintiff's Coca Cola analogy on its head by stating that one could buy a can of Coke, take it to a chemical analysis lab, figure out what it was made of, and publish the results. Such an act would be entirely proper under the Trade Secret Act under which DVD CCA is suing.
The defense also argued that trade secret law is a "relational tort," enabling an action of one party against another. It does not protect the secret itself.
He asked, "Where is Xing in this case?" If, as submitted, DVD CCA's license requires licensees to take reasonable measures to protect their trade secrets, then Xing has clearly failed in this obligation. Further, he asserted the DVD CCA does not provide code itself, but expects the individual licensees to develop compliant code. Therefore, any misappropriated technology belongs to Xing, not to DVD CCA.
Finally, he made a highly dubious assertion that there was no evidence submitted to establish that DVD CCA were the legitimately assigned licensors of CSS (which has been developed by Matsushita and Toshiba), and therefore were not empowered to bring this action. (This was readily debunked by the plaintiff during rebuttal.)
After he finished, Eben Moglen, Professor of Law from Columbia Law School took over. I don't think I overstate the issue when I say this guy absolutely kicked ass. Besides being a good orator, the man clearly understands technology as well as law. He's written a treatise on the issues of intellectual property in the digital age entitled Anarchism Triumphant: Free Software and the Death of Copyright.
Mr. Moglen basically proceeded to shred the plaintiff's arguments. He pointed out that DeCSS has nothing to do with wholesale copying; DVDs may be bit-for-bit duplicated and will play in any player without the use of DeCSS. He debunked the assertion of "irreparable harm" to the movie industry by doing some basic bandwidth math showing that downloading a 5.1 gigabyte movie will take you 30 hours (DSL speeds), and if you have a direct backbone connection, it'll take ten hours. Wholesale copying of movies in this manner is therefore not a realistic concern.
He raised the plaintiff's assertion that, while it may not be economically viable to copy movies today, these technologies will become cheaper and more available in the future. However, such theoretical future damages are not at issue; the court need only concern itself with what is happening now.
Mr. Moglen went on to describe CSS as extremely weak, and outlined Stevenson's novel attack against the cipher, which involves attacking the hash value to reconstruct the "title key" by which the MPEG stream may be decoded. In such a case, none of DVD CCA's keys are employed. The title key for any disc can be cracked on a Pentium-III in about 18 seconds. He drove home CSS's weakness by mentioning that Mr. Johansen of Norway is 15 years of age. Thus, the trade secret at issue must not have have been very secret, as it was literally child's play to discover it.
With all this, Moglen asserted that no cause of action remains because no trade secret remains. The "secret" in question was obtained by legitimate means, and Stevenson's subsequent work illustrates that none of DVD CCA's alleged secrets need be involved in decrypting a DVD. Had the DVD CCA acted more swiftly in restraining Mr. Johansen, they might have a cause for action. As it is, they've waited too long.
When he concluded, Moglen received light applause from the gallery as Judge Elfving asked for rebuttal from the plaintiffs.
Mr. Kessler assailed the work of Stevenson, saying that it proceeded from the improper DeCSS code by Johansen. Therefore, Stevenson's work, though novel, is "contaminated" by Johansen's alleged breach of the Xing "license", and the trade secret is still protected.
He argued against defense assertions that no license was in force, saying basically, "Yes, there was!" He attacked EFF's citation of the Sega case, stating that it was a copyright case, and that reverse engineering was held to be proper under Fair Use. This is a trade secret issue.
However, he went on to call attention to the DMCA again, stating that, as a matter of "public policy", reverse engineering is held to be improper. Then he flips again, and says they're not citing DMCA, only the Uniform Trade Secrets Act (which has no provisions for fair use).
Finally, the floor was turned over to Mr. Sugarman who (under pressure of time) characterized Professor Moglen's arguments as entertaining but irrelevant. All DVD CCA seeks, says Sugarman, is to take down the DeCSS code and all links to the DeCSS code. They are not seeking damages, nor are they seeking to quash discussion of the merits of the algorithm; only the trade secret itself.
Judge Elfving then thanked counsels, said there was a lot to think about, and would render his decision as soon as possible. Court was then adjourned at around 16:50.
My Analysis and Opinion:
We may readily concede that CSS was a trade secret, developed in secret, and made available under a comprehensive contract that obligated licensees to maintain the secrecy of the techniques used. It also seems fairly certain that the initial cracking of the CSS involved taking apart the Xing player and seeing how it worked. In order for this action to be a trade secret violation, Johansen's disassembly would have to be an improper use.
In order for it to have been improper, Johansen would have to be laboring under an obligation to maintain the secrecy of the Xing code and the CSS algorithm. The DVD CCA asserts that this obligation existed in the form of the shrinkwrap "agreement" which restricted, among other things, reverse engineering. So the DVD CCA's entire case hinges on whether shrinkwrap "licenses" are enforceable.
Let us put aside the fact that Johansen is Norwegian, where different laws and standards apply; and let us also put aside the fact that he is a minor, who likely can't be bound to contracts without parental consent (again, Norwegian law may differ on this point). Let us concentrate instead on this contract that, by the most tenuous forms of assent, may be considered in force and remove from the licensee a litany of valuable rights, including reverse engineering.
As I stated earlier, it is my adamant position that such documents are pure fiction; that they are not and should not be taken seriously. These instruments have little basis in law, and no basis whatsoever in simple ethics. They run counter to the real and reasonable expectations of consumers when they purchase software; that a sale has taken place, and they hold title to that particular copy of the software, subject to copyright restrictions. The "agreements" seek to alter the terms of the sale after the fact.
Further, these contracts attempt to escape vendors from the provisions of consumer protection laws, "lemon" laws, and remove from consumers their rights under Fair Use provisions of copyright law and, in some cases, the First Amendment (by forbidding discussion of benchmarks). And all one needs to do to assent to such onerous conditions is to, "install and use the software."
If A.H.Robins had attached such a license to its Dalkon Sheild, would it have been upheld? Would thousands of women around the country have found themselves unable to seek damages because they had "agreed" to hold A.H.Robins harmless? If Black&Decker attached such a license to its power saws saying you could only use Black&Decker saw blades, could it be enforced? We might concede they could cancel the warranty, but could they sue you for breach of contract, as DVD CCA has done over CSS?
Even if we were to presume such licenses are enforceable, how could they be said to apply to minors, who cannot be bound to contracts without parental consent? Must we then require that computer stores not sell software of any kind to anyone under age 18?
The idea is worse than ludicrous, it is offensive. No credible argument can be brought to bear that shrinkwrap licenses have any constructive use or benefit -- for consumers or publishers -- much less any foundation in ethics and basic human decency.
Some suggest that the "parade of horribles" that shrinkwraps enable has not happened, and is not likely to happen. I submit that a California corporation seeking a broad injunction, reaching beyond the borders of the state and even the country, to constrain domestic and foreign nationals from engaging in legitimate, ethical behavior to be a "horrible" that even the most paranoid among us could not have anticipated. There can be no further doubt that shrinkwrap licenses are a big, fat, ugly problem, and must not under any circumstances be allowed to stand.
Those who might suggest the GPL is weakened by such a position need not worry. While most commercial software "licenses" purport to constrain use, the GPL constrains copying. Absent a license of any kind, you still have the right to use your lawfully obtained software. You would not, however, have the right to make and distribute copies; the default conditions of copyright law apply. (This is true even if you're a minor.) Right to Use is concomitant with purchase; right to copy is not.
It is difficult to predict how the Judge will rule. Unlike the TRO hearing, the plaintiff was very well prepared. Both sides presented their arguments well. Judge Elfving stated that he wishes to be thorough, and will doubtless spend a good deal of effort considering the arguments. Still, both sides were articulate, and it will depend on who Judge Elfving chooses to believe, so the decision could go either way. Cross your fingers...
As I'm sure is obvious by now, many people would like to see Micros~1's comeuppance in the form of an actual court finding of guilt and wrongdoing against the company. While the DoJ's anti-trust suit has served this purpose fairly well, many hoped Corel's suit would drive the point further home in more concrete terms. But the case has been settled out of court without a final judgment and for terms which, from publicly available information, are barely significant. It's developments of this kind that allow the disingenuous to claim, "Micros~1 has never been convicted of any wrongdoing."
From outward appearances, your case looked strong. Even if Micros~1 appealed a judgment against them, my youthful naivate believes that Corel could have obtained superior settlement terms after a judgment had been entered. Without going into specifics, what factors weigh in a decision to continue to litigate a strong case, or to settle out of court prior to judgment?
...And then get someone to "surreptitiously" point it out to Ford's PHBs.
My suggestion: Fake up an email and run it through a bunch of anonymous remailers. Claim to be a cracker who has access to information that would be available to someone who penetrated only the outermost security layer. Mail it to yourself at Ford. Forward to supervisors with the heading, "We got a problem!" When the emergency meeting is convened, drop on the table your prepared action plan for creating reasonable security and say, "We're going to do this."
Make sure the first thing you do is install RCS/CVS/whatever version control on all security measures, and log everything. This way, they can't later claim your fake email was a ruse to install trojans, since all checkins were logged and can be reviewed.
Could someone in Asia pick up one of these counterfeit discs and send it to the EFF legal team? I'm sure it would be appreciated in court as evidence supporting our position.
What bothers me is this "freedom on the internet" genre of posts which makes it sound like us techies are being "oppressed" by big corporations. How is it that big corporations can control the 'net?
Have you read your ISP's Terms of Service contract? Check out this passage from RCN.com's Service Contract:
6. Subject to the provision of the Digital Millennium Copyright Act and any other applicable laws and regulations, RCN reserves the right to remove or block access to, either permanently or temporarily, any files which RCN
suspects or which a third party alleges are associated with a violation of the law, this Agreement or RCN's Online Policies or with the account responsible for such violation. This includes but is not limited to blocking access to Usenet news articles. [emphasis mine]
Note: Proof is not necessary; suspicion is all that's required to get your account pulled. If you've just bought a year's worth of DSL service, you could be out a few thousand dollars.
Movie makers make movies for the sake of making money.
Then they're in it for the wrong reason.
If you're in this solely to make money, then you're a mercenary, not an artist.
If we want them to use our standard (assuming we wrote one), then we would have to offer them assurances that their works could not be copied en masse and distributed without them making a profit.
We cannot offer them that assurance. The fundamental nature of digital media will thwart all attempts to do so. It was designed to copy bits infinitely and cheaply. Welcome to the real New Economy. Deal with it.
You see, they wrote the software - it is theirs.
Uh, no. Those two guys in Norway wrote the software. The DVD CCA created the keys. But keys are not protectible under IP laws (nor should they be).
For us to claim that hindering the distribution of DeCSS is restricting our freedoms is ridiculous - it has the ability to destroy the very foundation for profit upon which the MPAA stands.
Absolutely correct (you get a cookie). We will have to develop new foundations for compensating people for their work. I encourage people to start thinking about them.
Say someone discovered your debit card number; You wouldn't want them to post it on the internet.
But say that someone did post it. Now, you could lose everything in that account.
You are conflating concrete property (my bank account) with sales projections ("We might have sold this many DVDs if it hadn't been for those Commie-pinko pirates!"). Analogy fails.
Investors have placed lots of money in the development of DVD technology - and stand to lose a lot in the face of DeCSS.
Forgive me, but what utter nonsense. DeCSS is absolutely no threat to the sales of DVD players or discs. Even if you had a T3 into your home (at $5K/month), unsanctioned copying of DVD movies over the Internet is not going to happen; do the bandwidth math to see why. "Piracy" is simply not a problem.
The appeal of DVD to the movie makers is that it prevents unauthorized copying.
Inaccurate. The appeal of DVDs to movie studios is that:
The image quality is much higher, making their product look better and more appealing,
Their manufacturing costs are a mere fraction of videocassettes, vastly increasing their profit margins.
To destroy someone else's business investment for the sake of "freedom" is unethical, to say the least.
At the risk of completely torpedoing my credibility here, would your theorem apply to slavery as well? There were a lot of businesses in the American South 200 years ago that relied on slavery. Those businesses were killed (or, as it finally turned out, completely restructured) in the name of "freedom".
Real people like you and me invest in technology. We risk our hard earned money. And when something like DeCSS comes along, it threatens to nullify the investment that real people have made in technology, and make people more reluctant to accept new technology.
150 years ago, real people spent a lot of money digging holes in the ground looking for gold. None of them labored under the delusion that, just because they had invested a considerable sum into a hole, they were entitled to find gold at the bottom of it.
If you walk into the Digital Universe and honestly think you can prevent copying, then you've failed your fiduciary duty to yourself and your shareholders by not doing your homework.
Digital bits are -- and forever shall be -- easily copied at zero cost. Period. It is possible to do healthy business within this reality (NASDAQ:RHAT). Denying the reality only makes you look foolish and sets you up for one heck of an ulcer.
I think on balance [UCITA] offers far more of use to the OSS community concerning enforceability of the interesting OSS license terms than it actually withholds from our use of non-OSS code.
Frankly, I'm not sure UCITA offers much aid to enforcing the GPL. The GPL, and most other OSS licenses, differ in a key way from traditional shrinkwrap "agreements".
Shrinkwraps state, "You must agree to this wide array of covenants and restrictions, or we forbid you from using this product." The GPL, on the other hand, states, "As a lawful posessor of this code, you use it in any way you like. But because it's copyrighted, you can't make or distribute copies without a license. We will grant you a license to make copies if you fulfill these conditions:..."
Absent the UCITA, either shrinkwraps or the GPL (or both) may be found to be non-binding. If so, then default conditions of law apply. If the GPL is found to be non-binding, then copyright law by default precludes you from making and distributing copies. OTOH, if a shrinkwrap "agreement" is found to be non-binding, are we to presume the software can't be used at all?
It is my firm belief that, in retail venues, Right to Use is concomitant with purchase. I think a software publisher would have an uphill battle arguing that a person who lawfully obtained a piece of software can't lawfully use it without an enforceable "agreement" in place.
This is a copy of a Slashdot post I wrote elaborating on why I've chosen not to purchase Quake 3 due to their copy protection measures. The original post appears in the archived topic,
Quake 1 GPL'd.
_____________________________________
I'm probably going to lose people because of the length of this post, but I'm going to try anyway, because this issue is very important to me. There are a lot of points in a lot of different messages, which I've collected and replied to in this single post. Throughout, I will use admittedly charged terms like 'foolish', 'silly', and 'childish'. I will justify the use of these terms in due course, so hang in there.
cliffski writes:
i must fundamentally disagree on the topic of id softwares right to use copy protection. [... ]
I am not disputing id's right to do anything. As creator of Quake, they have the absolute right to do anything they wish with it, including not release it at all. They don't owe us -- and we are not "entitled" to -- a single thing.
No. What I'm objecting to is the foolishness of adding copy protection at all. Digital media is a universe of infinite abundance, so how do you justify hoarding anything? Don't answer yet; I'll come back to this issue later...
nothing is [guaranteed] in the games world, especially when someone releases Unreal Tournament just before you!
It will be very interesting to compare sales figures of Unreal Tournament versus Quake 3 in about six months. UT simply has check-for-the-CD copy protection (which is still silly, but much less silly than cryptographic authentication).
if you belive that id have the right to benefit from their work, then they MUST have the right to enforce that protection.
Again, I'm not disputing their right to impose protection; I'm arguing that copy protection is socially unredeeming, and could lead to bigger problems down the road.
Copying games is theft, [... ]
No, it isn't. Theft is when you deprive somebody of their property, such that you now have it, and they don't. Copying creates a new instance; the original owner still has his/her original object. I covered this in my essay.
MrEd writes:
But it's not foolish to try and set up artifical barriers against software copying.
I contend that it is, precisely because it's artificial. Again, I'll justify this futher in a bit...
If they want to reap the rewards of all the hard work which they've put into it, they must prevent Quake III from suffering the same fate as Quake II, [... ]
The fate of Quake 2? Quake 2 sold millions of legitimate copies, and id Software made tens of millions of well-deserved dollars, even in light of the fact there were enormous numbers of unsanctioned copies. Seems to me they would want to repeat the fate of Quake 2.
jamesbulman writes:
The fact that the digital media makes it easy to copy things does not give you the right to copy those things.
Possibly not. But in a universe where there's infinite abundance, how can you justify, in social terms, demanding people not make copies?
Anonymous Coward writes:
First: Are you sure it's *one* server? Second: If the auth servers go down, they will be back up immediately.
id are certainly competent enough to keep their servers running. But if some nincompoop with a backhoe slices the fiber to their building, then you're hosed, and we're back to a single point of failure again.
I am afraid you represent the foolishness here. [Server-side authentication] has been done already, with huge success.
Just because a thing is technically possible or available doesn't make it a good idea. There are societal consequences here which most people haven't thought about.
"software piracy [sic] has become an enormous problem," without any hard data to back it up.
Is there any doubt about this fact?
Yes. Big fat doubts with green hair growing on them.
Fact: Software publishers continually lament "losing" billions of dollars a year to unsanctioned copying. They routinely refer to these unrealized revenues inaccurately as 'theft'. Yet these 'thefts' are never reported to their shareholders. Fiduciary duty requires thefts, especially of the magnitudes claimed, to be reported to shareholders in the company's financial statements. Since the "losses" from unsanctioned copying are never so reported, we may conclude that true 'theft' is not occurring.
Fact: Despite "losing" billions of dollars a year to unsanctioned copying, software companies, on balance, continue to post rising profits. Micros~1, which portrays itself as the industry's biggest victim of unsanctioned copying, has posted record earnings quarter after quarter for years. Thus, these "losses" are not really occurring.
Fact: No software company has ever been driven out of business due to unsanctioned copying of its products. Such business failures are due to poor quality products, poor management, or lack of business acumen.
Fact: Quoted figures on industry "losses" to unsanctioned copying are completely theoretical, based on idealized extrapolations of what-if scenarios. It is impossible to gauge the precise amount of unrealized sales because it requires measuring events (sales) that didn't happen. You'd have to fork() a copy of the universe where unsanctioned copying was impossible, and compare the results against the real universe. We must not take the SPA's numbers seriously; not only are their numbers, ultimately, made up, they refuse to even disclose how they made them up.
So, yes, the idea that "piracy" is a big problem is still very much open to debate.
Again you speak as if id were into charity.
Nowhere did I suggest id is into charity. Nowhere did I suggest that id should not be compensated handsomely for their work.
What I am suggesting is that, due to the infinite copyability of digital bits, the economic and social rules are different, and that copy protection is an attempt to force an old ruleset that, in the long term, cannot work. (Hang on, we're nearly there...)
The only ones who hate CD keys are warez puppies [... ]
...And people who want to keep the digital universe free and unfettered, so that its infinite abundance may be enjoyed by all.
As for being a w4r3z pUPpY, please be assured that, once Quake 3's copy protection is removed, I will be off to Fry's with my wallet so fast, you'll see a red shift on my butt.
Okay. Remember how I said I would try to justify all my weird claims up there? Here it comes:
I'd like you to indulge me for a moment, and use your imagination to picture what life might be like on the Starship Enterprise. More precisely, what would life be like where everyone had access to a matter replicator? What would society be like? What would the economy be like?
Let's take the economic consequences first. What happens to a market-based economy when you start handing out replicators? It collapses, that's what. A market-based economy relies on scarcity and inconvenience to operate. If you introduce a replicator, scarcity and inconvenience vanish, and suddenly you can't charge money for physical objects anymore, since your intended market is now simply copying them. Just ask your friend Brad to borrow his BMW for five minutes, stick it in the replicator, *ZAP*, and you get to have a BMW, too.
Okay, so what are the social consequences of this? Do we decide that copying objects is 'theft', or even unethical? Well, really, how can you make either claim? It isn't theft, because no one is deprived of anything. I also have a hard time seeing how it's unethical. If I copy your stuff, you are not diminished or deprived in any way; you still have all your stuff. It's just that now I have a copy of it, too. Why would that be a bad thing?
You may argue that such copying dilutes the value of your property. But if, on the Starship Enterprise, everyone has access to a replicator, then everyone's in the same boat (so to speak). Everything is copyable, and everyone has copies. Thus, the 'value' of your copy is not its relative scarcity (since scarcity doesn't exist), but how it enriches the quality of your life. You would select what to copy based not on what you could afford, but its utility, design, and its aesthetic qualities.
Let's say you were an artist in this future world, and you had just spent the last two years building a sculpture. Everyone you show it to thinks it's wonderful. Now, as the creator and owner of this sculpture, you have the right to demand that no one copy it. You may even be able to enforce this desire with force fields of some kind. But why would you do this? Why, with infinite abundance all around you, freely available to everyone, would you want to keep this fine creation to yourself? More importantly, how would the society around you view this behavior? Might they just possibly see it as foolish?
If a Star Trek universe is too abstract for you, let me offer a more familiar scenario: A schoolyard. There are plenty of balls for all the children to play with, all of them identical. Yet, invariably, some children will latch on to a particular ball and yell, "My ball!!" If someone tries to take it away from them, they will get upset. There they are, standing in the middle of an abundance of balls, all of which are free for them to grab, yet they will insist on a particular one being "theirs." We try to discourage this behavior in our children, because it's foolish.
The reason I bring these analogies into play is because the exact same forces are at work in the memories of our computers. Just as the crew of the Enterprise stand in the midst of infinite material riches, we stand in the midst of infinite digital riches. Therefore, the same economic and social consequences apply to digital works. Yes, you have the right to impose copy protection, and the technical means, but if, economically, it doesn't matter, and it makes you look socially foolish, why would you do it?
You're probably thinking I'm being disingenuous here. I'm not. I fully acknowledge that, as of this writing, the digital universe is a completely different thing from the physical universe. In the physical universe where we all live, we use the tool of the market-based economy to motivate people and get our basic needs met. Yet the digital universe heralds an age where this will no longer be true. The two universes are existing simultaneously side by side; how do we reconcile the two?
I haven't the faintest damned idea. We are still reacting to and building social models for this new universe. And this is why I feel that copy-protection is so wrong-headed. It's an expediency that potentially short-changes our replicator-laden future by causing the wrong social models to be built. The physical universe makes it a very compelling expediency, true, but it could have staggering consequences when the physical universe finally catches up and replicators appear (and they will appear; they're too cool not to).
So, if we were to acknowledge that copying is going to happen and that it's okay, how would we motivate people to create things in the first place, and compensate them for their work? This is the area that needs exploration, and I encourage everyone to think about it.
To be honest, I have no idea how our society would react to replicators. It may turn out that, as primates, we are biologically compelled to be territorial about things, even when it doesn't matter. We may decide that wholesale copying of physical objects is wrong. I don't know; I'm not an anthropologist. Since we have no idea what's going to happen, I personally would prefer to work toward and build the future toward which we as a species seem to have been striving for centuries: Unrestricted, infinite abundance for everyone at zero cost.
And that's why I can't support Quake 3's copy protection. It's not because Quake 3 is a poor product (it's excellent), or because id Software are evil (they're not), or even because it's too expensive. It's because copy protection is not part of the future I want to build.
Mr. Kamer's article offers an excellent argument, complete with citations to various findings of law to back it up. I had no such background when I wrote my editorial, By Reading This Article, You Agree to Subscribe to This Magazine for 25 Years. If you're interested in a philosophical (as opposed to legal) background into why shrinkwrap "licenses" are ethically indefensible and should never be taken seriously, I hope you might do me the privilege of reading it.
I submitted this to Slashdot's
Your Rights Online section some weeks ago, but it was rejected. I think the article is pertinent here.
Recent stories on Slashdot have told of the ongoing "tennis match" between digital content providers versus consumers and technically skilled people. The recent cracking of DVD's Content Scrambling System (CSS) lent ammunition to the opinion held by computing professionals and users that copy protection systems are doomed to fail. The effort has been likened to building a dam against the ocean; a foolish and useless exercise. In Slashdot discussion fora, the point has often been raised, "If you can perceive it, you can copy it. What are they going to do, encrypt the bits all the way to the speaker/electron gun?" If the Copy Protection Technical Working Group gets its way, that is precisely what's going to happen.
I received a piece of email spam today, which actually turned out to be useful (probably the only time that's ever happened anywhere). It directed me to a flat panel display industry group. Among others, one of the links pointed to the California Display Network, which had a link pointing to technical info on flat panel technology. Since I currently earn my living writing graphics card and display drivers, I clicked through to see what I could learn.
I found an entry for an overview of digital visual interfaces, provided by Silicon Image. As I reviewed the headings of the slides, one entry stopped me cold: Conten t Protection Status. Content protection? In a flat panel?? Yup: "Implementation of DVI content protection is suitable for PCs and monitors." [emphasis mine]
Thus began an evening of link clicking and Google searches to find out what this off-handed remark could mean. The slide made mention of the 'CPTWG'. This is the Copy Protection Technical Working Group, a consortium of content providers (movie companies), consumer electronics manufacturers, and players in the IT industry. This is the same group that developed CSS for DVD players.
One paragraph from the above page is particularly disturbing:
CPTWG has focused until now only on "casual piracy [sic]", characterized as what a grandmother can do in her home with her DVD. Piracy [sic] requiring even the level of expertise (and equipment) of her grandson, who might be an EE student, has been excluded from consideration. There is a growing awareness that a broader content protection effort may be necessary.
The most recent meeting of the CPTWG was yesterday, 8 December, 1999. Their meeting announcements may be found here. According to the December meeting announcement, the next meetings will occur on 11 January, 2000, and 9 February, 2000. It costs $100 to attend.
The attendance roster from the November meeting (PDF file, sorry) lists a very interesting, and possibly worrying, mix of organizations. A partial list of representatives included:
If you download the roster and read closely, you'll see every major piece of your computer represented. There is no doubt that at least one part of your computer -- your CPU, your RAM, your disk drive, your graphics card, your monitor -- is manufactured by one of these companies.
If you look further still, you'll see there are no consumer advocacy groups listed.
What are they all working toward? Quite simply, to prevent you from using your lawfully obtained digital material in any way they don't want.
Here's one example of how they'll do it: If you've visited Fry's or CompUSA recently, you'll notice that full-size flat panel displays are starting to appear. Currently, most of these displays are based on the old VGA analog signals, which are converted into the digital signals needed by the panels. The Digital Display Working Group is working on a new connector and signalling standard called Digital Visual Interface (DVI) that will allow computer displays to go all-digital. You won't need a DAC on the video card; the digital signals will be fed straight through to the display. Image fidelity will be much higher, since there won't be any intervening DAC/ADC conversions. Version 1.0 of the standard has been published and is available for download (PDF format). The DVI spec currently does not stipulate copy protection measures. However, plans are in the works to incorporate it.
Intel is one of the primary contributors to this effort. On Intel's developer site, they have some papers on copy protection for IEEE 1394 (Firewire) digital streams. In two separate articles, 1394-based Digital Content Protection: an Intel Proposal, and Content Protection for IEEE 1394 Serial Buses (the latter being a Powerpoint presentation masquerading as a PDF file), Intel outlines its proposal for protecting digital content over Firewire. By using cryptographic authentication techniques, a device offering digital content will "handshake" with other devices on the bus to assure that digital data is only received by, "compliant devices." In a revised overview of the proposal, IDF Talk: Content Protection for the IEEE 1394 Bus, Intel offers concrete implementation details, including:
DSS (Digital Signature Standard)
Diffie-Hellman key exchange for device authentication,
Blowfish cipher for content encryption, with a keylength of 32-128 bits,
Digital watermarking techniques to declare "rights" (right to playback, right to copy, etc.) to the receiving device.
The full proposal (currently version 0.91), with lots of technical detail, is mirrored on CPTWG's site (the links to Intel's site don't work).
Intel's proposal also recommends that the copy protection system be field-upgradeable to thwart ongoing attacks, and that it should be possible to revoke (read: disable) a device determined to be "compromised." (The tone of the proposals is also interesting. It's previously been thought that, because of USB, Intel is hostile to IEEE 1394. Yet these proposals suggest that Intel's quite enthusiastic about 1394... Once copy protection is incorporated.)
Intel's proposal mentions only IEEE 1394. However, it also mentions that there's nothing preventing the technique being applied generally to any bi-directional link. So for all occurrences of '1394', substitute 'DVI', and you've got an idea of what to look forward to in your new digital monitor. And your new DVD player. And your new HDTV set. And your new USB speakers.
Intel goes even further in their paper, A Framework for DVD-Audio Content Protection. In it, the author suggests that DVD-Audio recorders permanently remember the IRSC (International Standard Recording Code) of every song the device is asked to copy, so that it may only be copied once, period. They go on to suggest that the recorder could have a modem built-in to authorize (read: purchase) the ability to make additional copies.
In short, through this industry consortium, Hollywood proposes to exert control over every link in the digital chain, from the digital camera, to the disk drive, to the CPU, to the graphics card, to your display. They will decide what rights you have. Even if a court decides Fair Use includes multiple copies for personal use (such as assembling a video montage), it won't matter. Your computer will still refuse to make the copies (and probably fink on you, as well).
This coordinated effort is ostensibly to combat unsanctioned copying (which the industry chronically refers to incorrectly as 'theft' and 'piracy'). However, no one has ever been able to provably quantify the value of unrealized sales due to such copying. All dollar estimates that have been published are just that: estimates, based on idealized extrapolations of what-if scenarios. Moreover, although the industry claims to "lose" billions every year, they continue to post record profits. Finally, despite the proliferation of CDR drives and the Internet, most unrealized sales are the result of organized mass counterfeiting rings, not casual copying. None of the proposed methods I've seen appear to thwart mass counterfeiting at all. So clearly there's some other reason for all this.
The thing that puzzles me most is why the computer and consumer electronics industries haven't told Hollywood to take a hike. Intel's copy protection proposals state, in bold letters, "No content protection = No Hollywood content." This belief is taken as axiomatic by all the players, and appears to be the driving force behind the entire effort. This belief is also false.
Audio on CDs are recorded as plaintext, and the music industry continues to earn rapacious profits. Even the with the advent of CDRs, no music industry executive in his right mind would suggest dropping CD sales and going strictly with cassettes and vinyl. If nothing else, the manufacturing costs for CDs are lower than those for cassettes and vinyl. Likewise, DVDs are tremendously cheaper to produce than videotapes. Videotape duplication is a labor-intensive process; DVDs can be stamped out automatically. The savings in cost-of-goods alone would more than balance against any unrealized sales from casual copying. Corporate shareholders, always mindful of the bottom line, will also demand that the studios move to the cheaper, higher-quality process, copy protected or not.
The fact is that the computer and electronics firms are in the driver's seat, and are free to dictate how the new digital formats will work. Hollywood will use whatever format becomes popular, whether it has copy protection or not. They may grumble about it, but they'll use it. The economics afford them little choice.
We are only now beginning to explore the social and ethical consequences of a Star Trek-like universe where everything can be infinitely duplcated at zero cost. We have no idea where things will end up. But now is not the time to start erecting electronic walls and imposing artificial scarcity. The ignoble and richly-deserved death of DIVX showed -- fairly unequivocally, I thought -- that consumers want to make free, fair use of their digital media, without interference from outside. I believe its death reinforces the future toward which we've been pushing for centuries: Increased abundance at reduced cost.
Nevertheless, the CPTWG and the organizations supporting it are blindly moving forward. It may turn out it's impossible to dam the ocean, but they're gearing up to give it one hell of a try. We can only hope that the lesson of DIVX will be repeated until it is learned.
There was once a man interviewed on ABC News whose job is to count up every single ad visible in every second of NASCAR televised racing, along with the duration of visible time. He then punches this in a spreadsheet and uses calculations to both valuate and evaluate the money worth of each ad spot.
Now advertisers will be pissed because there is no more garuntee that they will be seen on television. [... ]
So what you're saying is that, if I get one of these gadgets for myself, I can digitally remove all the billboards, ads, and other such crap I see on televised sporting events? The race cars will actually look like cars and not a cacophany of stickers and decals? The football players won't be sporting oversized Nike logos anymore?
Does Fry's stock these gadgets? I am so there...
(Author's Message: In the hands of only CBS, NBC, et al, such a device has vast potential for abuse. In the hands of an individual viewer, though, it's an unbelievable tool of empowerment.)
We will now deconstruct the bombast of the religious extremist, showing that you don't need brains or critical thinking to be a prophet, only a mouth.
True, genuine freedom of speech, as intended by the Fathers of our Nation,
Ah, yes, invoking America's Founding Fathers as if they were religious icons.
Fact: Nearly all of the Founding Fathers were non-Christians. Washington in particular was a deist (look it up). Many were atheists. Moreover, it was because there were dozens of competing sects on the continent at that time that separation of church and state was written into the Constitution. The reason you're alive today (and not "ethnically cleansed" by a state-sanctioned faith) is because of this principle. Revere it.
...has nothing to do with spending tax dollars to distribute pornographic socialist/feminist propaganda. It also has nothing to do with public funding for organizations bent on destroying the religious underpinnings of our nation.
I got news for you: There are no religious underpinnings to our nation. The United States is a secular state. Period. The progress we've enjoyed has been the combined work of Christians, Jews, Moslems, Quakers, Puritans, Deists, Mormons, Pagans, and even -- dare I say it? -- Scientologists. No one faith enjoys any particular favor. This is the unique strength of our country. Celebrate it.
As for libraries distributing sexually explicit material, libraries have an obligation to make available all forms of literature and human expression, both base and exalted.
These things are acts of war against the people of the United States, and it is certainly within the obligations of our government (as outlined in the Constitution) to defend against them.
Oh, of course. I guess that's why 250,000 lesbians are massing at the Canadian border, preparing to invade Michigan. And when they do, all the University students who have been brainwashed by subversive "liberals" in the faculty will unwittingly aid in the insurgency, and before you know it, women all over America will be wearing comfortable shoes. Horrors!
Get a grip.
Therefore, what you're calling "censorship" is nothing of the kind. It's just a common-sense attempt to protect our nation from its enemies.
Got more news for you, pal: These "enemies" are responsible for one of the most extraordinary economic upswings in the last 100 years. Weirdos designed and run the digital infrastructure you enjoy today and use to flame us. Are you quite sure you know your audience here?
These enemies are dedicated to collectivist forms of political and economic tyrrany, which inevitably will outlaw all true freedoms (not to be confused with enslavement by licentious "lifestyle" insanity, which the liberals call "freedom").
I'd counter-flame you with a well-reasoned proof as to why this is utter bullshit... If I thought it would do you any good. So I'll simply offer the following axiom, and invite you to try in your furtive way to disprove it:
"Lifestyles" are not contagions. If your neighbor is gay, that doesn't mean you will become gay, too. More generally, the personal preferences and choices of the people around you do not prevent you from making your own choices. You are free to choose whatever you want. Others may choose something else. You may not like it, but who made that any of your business?
The feminazis and the ACLU can shriek their loudest, but this is the greated blow for freedom and individual rights that your town has seen in decades, and it will be hailed as such by any honest commentator.
Oh, you mean like Rush Limbaugh?
Example: I want to go to the library and check out Catcher in the Rye. I can't find it because some religious extremist had it banned, or outright stole it off the racks and destroyed it. How does this enhance, as you put it, my freedom and individual rights?
Freedom includes the freedom to make mistakes. Perhaps it is a mistake to read Catcher in the Rye. I won't know until I've tried. Who are you to stand in my way? If you truly believe that libraries have become a den of iniquity and a source of society-destroying Commie-pinko propoganda, then forbid your children from ever going there.
You have choices. So do I. I'm not about to use the power of the state to curtail your choices; I'll thank you to return the favor.
I wrote this essay almost five years ago. Some of you may enjoy it.
Personally, I wish the puppeteers would stop coming forward, making the corpse flop around a bit and proclaiming, "Look! It lives!"
I'm really tired of these charlatans playing off (what's left of) the loyalty of the Amiga crowd. If you're going to do something with it, do something with it, and stop jerking people around.
The culture you postulate is partially explored in the film Rollerball. Go rent it.
Schwab
Re:"Nano" technology is not invevitable
on
The Timekeeper
·
· Score: 2
However, the engineering and practical aspects would be immense.
In Charles Babbage's time, an automated calculating machine that could automatically draw pictures that were perspective correct would have been unthinkably complex. It would have been an immense job.
And, in a sense, it was. It took us 100 years to get there.
Hollywood made their intentions clear today: Your computer no longer belongs to you, but to the corporations that provide "content" for it.
Today, in Santa Clara County Superior Court, Judge William J. Elfving presided at a preliminary hearing in the case of the DVD Copyright Control Association versus... well, everyone. The judge heard arguments to determine if a Temporary Restraining Order should be imposed on the entire Internet forbidding the dissemination of the now-famous DeCSS decryption code.
I woke up this morning at 06:10, an abhorrent waking hour for a software geek. I then proceeded to do something which, if you know me at all, is completely out of character: I put on dress slacks, shirt, and a tie. I hadn't tied a tie in several years, so it took a couple of tries before I got it right. The drive to the courthouse in San Jose was amazingly uneventful. Highway 101 southbound during rush hour is ususally a complete mess.
I was one of the first to arrive at the courthouse. After having my bag X-rayed and depositing my set of screwdrivers with them, I found myself joining a growing group of people waiting for the court offices to open so that we could find out to which courtroom the case had been assigned. Some of the people present were well-known names to most Slashdotters, including Bruce Perens and John Gilmore. I imagine we were a bit of a conundrum for the law enforcement officers present, no doubt used to parades of well-dressed lawyers who, unlike us, know exactly what to do and where to go.
At 08:15, the offices opened, and counsel for the plaintiffs filed their complaint, which was assigned a case number. We then made our way to courtroom two on the second floor, awaiting the doors to open. By the time the doors opened, we numbered about thirty people. Plaintiff's counsel pretty much kept to themselves, while we made a slight racket talking to each other. One individual (don't know who) started passing out copies of the DeCSS code, both in printed form and on repurposed Microsoft Office setup floppies. One such set was handed jovially to plaintiff's counsel.
Interviews were also being conducted by, among others, a reporter from WiReD Magazine, and Tracy Romine for KCBS radio.
Eventually, the doors opened, and we all became quiet as church mice and filed into the courtroom. Once counsels for both sides were ready, Judge Elfving was announced and entered, and court was in session.
Appearing for the plaintiffs were three lawyers from the law firm representing the DVD CCA. Appearing for the defense were two lawyers from the EFF. Of the fifteen or so named defendants and the 500 John Does named in the DVD CCA's complaint, only one appeared in court, summons in hand, whom the EFF were representing.
The hearing was to hear the filing of the complaint, and to consider imposing a Temporary Restraining Order (TRO) which would forbid everyone named in the complaint (basically the entire Internet) from further distributing the DeCSS code. If imposed, this order would be effective until the date of the next hearing, at which will be considered imposing a much longer-lasting Preliminary Injunction.
The first order of business was to set the date for the next hearing, and the dates for the filing of notices, papers and arguments prior to that hearing. The next hearing to consider the Preliminary Injunction will be at 13:30, 14 January, 2000.
Finally, we got to oral arguments for and against imposing a TRO. At this point my report gets hazy, as I didn't start banging out notes until after the recess. Basically, plaintiff's counsel repeated the main thrust of the complaint arguing that, if left unchecked, irreparable, serious harm would befall the DVD CCA, numerous Silicon Valley firms, the movie industry and, presumably, the American way of life. Counsel also produced the copy of the DeCSS code which he'd been handed earlier, and asked that it be admitted into evidence, and requested that its contents be sealed. This request drew polite laughter from the gallery. The Judge nevertheless agreed to the request, in the interests of not prejudicing the case, and admitted the exhibits and sealed them.
EFF counsel then began, and proceeded to characterize this case as hinging on freedom of speech. They drew upon numerous citations, including a recent decision by the Ninth Circuit Court of Appeals, which found that code is speech. Defense made note of the fact that, in free speech cases, prior restraint of speech is presumptively invalid unless extraordinary circumstances are present.
The EFF also noted that the true original source of the DeCSS code is not known, therefore characterizations about its origins are speculative. Plaintiffs assert that it was obtained illegally; defense asserts there's no evidence or inference to that effect.
The EFF then went on to debunk the plaintiff's claim of irreparable, serious harm. There is absolutely no evidence to suggest that sales of DVD discs, DVD players, and DVD encryption licenses have suffered due to the release of DeCSS. Defense made the revealing statement that DVD discs may be copied without the use of DeCSS.
Defense also drew notice to a similar case in Chicago concerning door locks being reverse-engineered by locksmiths; the lock manufacturer attempted to sue for theft of trade secrets, and lost.
Plaintiff's counsel then rebutted the EFF's arguments, claiming that this case had nothing whatever to do with free speech; that in no way were the plaintiffs seeking to quash discussion about this case. They asserted that this was a clear-cut case concerning misappropriation of trade secrets, and that all they claimed they were interested in was halting further dissemination of their trade secrets. They asserted that all parties "know, or should have known," that the DeCSS code was obtained illegally.
DVD CCA's arguments seem to hinge rather pivotally on the license "agreement" that accompanys the Xing player. CCA states that, in order to be able to use the software, you must become a party to an "agreement" that, among other things, forbids reverse-engineering. If the "agreement" is binding, then the Xing keys were extracted in violation of it, and thus the DeCSS code is illegal. (I wrote a long editorial on the subject of shrinkwrap "agreements", and why they are ethically and legally indefensible. It may be found here.)
The plaintiff then went on to assert that, if a TRO was not granted, a campaign would ensue on the Internet to spread the DeCSS code as far and wide as possible, until it finally reached the hands of an "innocent person" who could not reasonably be shown that they "should have known" the code was illegal, at which point CCA's trade secrets would be lost forever.
The EFF took the floor again, and cited the recent cryptography case in the Ninth Circuit Court of Appeals, where it was found that computer code is speech, and thus protectible under First Amendment auspices. They reasserted that there was absolutely no evidence to suggest that the disputed material was obtained improperly.
EFF also made the point that the Xing player may be inspected and analyzed without ever seeing the "license" that purports to govern its use. CCA tried to claim, "Hacking around the license is itself improper," but the EFF lawyer corrected him, saying, "I did not suggest hacking was employed."
Finally, Judge Elfving retired to his chambers to consider the arguments, and court was adjourned.
Our group filed out of the courtroom, and eventually ended up in the courtyard outside. There were some members of the press conducting additional interviews, including Tracy Romine of KCBS radio, who interviewed Bruce Perens, John Gilmore, and also snagged a soundbite from me.
Most of the group then wandered off to have lunch at a Cuban restaurant selected by Chris DiBona, which I couldn't find, so I settled for the nearest Hobee's for a very late breakfast. Afterwards, I headed back to the courthouse, made another trip through the metal detector (they didn't take my screwdrivers this time), and went upstairs to courtroom #2 to see if there were any new developments. No one knew if the judge had rendered his decision yet, so I sat down in the hall and started to write this report.
As I did so, at around 14:30, Judge Elfving walked past. I asked if he had rendered a decision on the TRO yet. He said he was still studying the issues and would have a decision by the end of the afternoon.
Sometime later, Dan "Karma Whore" Kaminsky (:-) ) walked up, and we got to chatting about the case, the Internet, the nature of digital media and its social and economic implications, the legitimacy of shrinkwrap "licenses", and so on. Around 16:30, we were joined by a reporter for the San Jose Mercury News, and asked us about what had brought us there.
Dan focused on his desire to play DVDs on his Linux box, asking the question, "Why shouldn't I be able to do that? More important, why should a movie studio have the power to tell me I can't do that?"
I preferred to focus on preserving the freedom to explore. "I taught myself about computers by taking apart other people's stuff, understanding how it works, and using that knowledge to build new stuff. I have a good job today because I had the freedom to make those explorations and gain the knowledge and skills I now have. They're trying to tell me that's illegal. I don't buy it."
The reporter also asked what possible reason, other than copying, could there be for DeCSS to exist? I tried (probably unsuccessfully) to draw a parallel to that neato display hack, Cthugha. Since the images generated by Cthugha are the direct result of the copyrighted digital data coming off the CD, are the generated images therefore covered by the same copyright? Since the publishers of the CD didn't explicitly grant the right to use their CD in this particular way, does that make it illegal, or even unethical, to do so?
While we were discussing this, around 16:30, one of the court employees emerged from the judge's chambers and informed us that the request for the Temporary Restraining Order had been denied. We got a brief look at the document issued from the judge. No reason was given for the denial; it was simply the proposed order written by the plaintiffs, with the TRO sections crossed out, effectively turning it into a notice as to when the next hearing would occur. Judge Elfving was unavailable for comment.
And thus ended an unusually long and interesting day. The San Jose Mercury reporter left, and Dan and I parted ways. I headed home and finished this report. Traffic on Highway 101 was, once again, astonishingly good for five PM.
The next hearing is at 13:30, 14 January, 2000. It's a Friday afternoon. I expect the session to be packed.
Slashdot Mirror
No, they got it wrong. Again. The correct, time-honored solution would be:
$ chown root.root /dosc/windows/* /dosc/windows/*
$ chmod a-w
"Those who do not understand UNIX are condemned to reinvent it -- badly."
-- Henry Spencer
Schwab
I must say I agree with the general tone of the article. Many of the ads I've seen in gaming magazines, and even in game developer magazines, are simply tasteless.
There are two ads in particular which come to mind: One by ATI, showing nothing but a synthetic woman (evidently from some published game) with an almost unlawfully short skirt clutching an Uzi to her chest; and another for TrueMotion 2X, which has another synthetic woman in a pose about two pixels away from flashing her genitalia. The recent ads for LightWave 6 aren't much better, which feature two synthetic females in the foreground who are all cheesecake and no art. (And then there's the ads for Ventriloquist, which aren't offensive, just disturbing.)
I admit this is all very subjective; some of the stuff I find interesting would probably have some of you on the phone to the authorities. So I would encourage the marketroids at game companies -- and other companies as well -- to avoid stuff that's crass and exploitive. It's too easy, and suggests laziness in your creative department. Try to be more original and artful.
Schwab
NB: To paraphrase Dave Barry, I swear I am making this up.
It's fairly evident that someone within the motion picture industry has taken it upon themselves to attempt to disrupt meaningful discourse on the issues by spamming Slashdot with large, irrelevant posts. Already there's a megabyte of spam on this topic.
It's interesting that this is precisely the same tactic employed by the Scientology cult way back when, when it spammed USENET groups in an attempt to drown out criticism of the cult's harassing, deceptive, and illegal activities.
It's even more interesting to observe that, if the movie industry finds itself compelled to resort to such juvenile, cowardly tactics, it must be because they recognize the fundamental indefensibility of their position. If their position had any merit, they would engage in meaningful discourse with the rest of us, rather than resorting to peurile antics.
Further proof of their foolishness, methinks.
Schwab
Because it may be the next step in our evolution.
Some science fiction writers have speculated that, when a species becomes intelligent enough, messing with its own wetware is the next logical step. After all, it was a natural process of evolution that led to the species becoming intelligent enough to understand genetics at all; why should subsequent deliberate manipulation of those genetics be any less natural?
And even if we take control of physical evolution, social evolution will carry on "naturally" much as it always has. Just a few hundred years ago, people thought slavery was fine, and that the Earth was flat and the center of the universe. We have evolved beyond it. We will evolve beyond this, as well.
Yes, the possibility fills me with unease, just as did global thermonuclear destruction. It may take a generation or two, but I suspect we'll learn to cope fairly well with this new power we've unleashed upon ourselves.
Schwab
Oh, sure, my submission about the passing of Ms. Lamarr gets rejected. Not that I'm bitter, mind you...
Anyway, the San Francisco Chronicle ran a story about her passing, inclding some nic e photos of her. They also had an overview of her spread spectrum invention.
Hedy was also honored by the EFF with a Pioneer Award in 1997 for her spread spectrum work.
Schwab
Today, the DVD Copy Control Association and the EFF once again met in court, this time to argue for and against the ordering of a Preliminary Injunction against, basically, the entire Internet, forbidding further dissemination of DeCSS, the source code module that decrypts DVD MPEG streams. After today's hearing, there should be no doubt in anyone's mind that shrinkwrap license "agreements" are monsterously unethical and should on no account be allowed to stand.
It is worth noting up front that I am an adamant, vociferous opponent of these so-called "agreements", so I hope the reader will excuse some editorial bias. (Individuals interested in my editorial on the subject can find it here.) Also, events in court did not occur strictly in the order I will present; I will be grouping together related concepts to make them easier to compare.
Court began promptly at 13:30, and counsel for plaintiff and defendant introduced themselves (the names went by too quickly for me to get most of them). Judge Elfving indicated that he would not render his decision today, but would rather consider the arguments and filings before him and render a decision at a future time. He was unwilling to commit to a specific date, but indicated that it would not be overlong. Judge Elfving then invited plaintiff's counsel to present their argument.
Jeffrey Kessler began his argument with the following question: Can a user extract trade secrets in violation of a shrinkwrap agreement? A lot of other arguments were presented, but it seemed to me that the DVD CCA's entire case proceeds from this single precept.
In order to prevail in a trade secret violation, the plaintiff must show:
CCA's contention is that the reverse engineering employed to discover the CSS algorithm was prohibited by Xing's shrinkwrap license "agreement". (Kessler reiterated this point with some force throughout the proceeding.) Since the reverse engineering violated this contract provision, the algorithm discovered within was improperly obtained due to breach of contract, and is therefore a trade secret violation. DVD CCA therefore argues that they are entitled to a Preliminary Injuction forbidding further dissemination.
Kessler went to a lot of trouble establishing that the original source of DeCSS was Xing's player. An expert's affadivit asserts that the original DeCSS release contained only Xing's key, suggesting that it was the Xing player that had been reverse engineered. Presumably, by establishing Xing to be the original source, they can invoke Xing's "license" that prohibits inspection.
Kessler made the assertion that, even if the "clickwrap" license had somehow been avoided, it still applies and is in force, since the license stipulates that assent to the contract is made, not by clicking on "OK", but by installing and using the software.
Kessler also seemed to go to some lengths to attempt to establish when DeCSS made its first appearance, which appears to have been the binary-only release on 6 October, 1999 from the group M.O.R.E. (Masters Of Reverse Engineering). Subsequent to that, Stevenson's work (where he attacks the hash rather than the keys) appeared around 25 October, 1999. I presume he did this in an attempt to establish that any release subsequent to these dates "must" have come from the "improperly obtained" algorithms.
DVD CCA cited several court cases supporting their petition for a Preliminary Injuction, which were granted forbidding further dissemination of materials under dispute (notably, the Religious Technology Center (Scientology) vs. Netcom). Kessler further asserted that no court case has ever held reverse engineering to be proper.
Kessler also cited the recently effected Digital Millennium Copyright Act which, as a matter of "public policy", forbids reverse engineering. However, he went on to state that DVD CCA is not bringing suit under the DMCA; they are bringing suit under the Uniform Trade Secrets Act.
The plaintiffs also asserted that the "hacker community" clearly knew that DeCSS was obtained improperly, and proceeded to quote from postings in Slashdot discussion fora made back in July where random people opined that a DVD player for Linux might not be legal to develop. (There were no in-court mentions of Natalie Portman or hot grits.) Kessler asserts that this public discussion validates their claim that the defendants "should have known" DeCSS is illegal.
The plaintiff also stated that the fact people may have been trying to develop a DVD player for Linux is entirely beside the point. Moreover, he stated that DVD CCA was not discriminating against Linux, that they were more than willing to license CSS to any "credible party" who wanted to develop a DVD player.
Finally -- and I think this is fairly significant -- DVD CCA made the observation that, if this were a copyright case, there might be a provision for reverse engineering under the Fair Use doctrine. However, there is no such provision in Trade Secret law, and the reverse engineering is therefore improper.
Kessler then turned the floor over to Robert Sugarman, who proceeded to disparage the EFF's First Amendment arguments. He repudiated the assertion that the defendants were news sources, and that they should not be accorded the protections available to newspapers. He asserted that the defendants are doing much more than engaging in First Amendment-protected discussion on this issue.
He repudiated EFF's citation of the Bernstein case. Copyright was at issue in Bernstein; this is a Trade Secret issue.
He also likened the obtaining of the DeCSS algorithm to breaking into Coca Cola's inner sanctum and stealing a copy of their secret formula. (In fact, the analogy of Coke's secret formula figured prominently in the plaintiff's arguments.)
Then he dropped a small bomb and stated outright, in open court, that they seek to enjoin not only hosting of the DeCSS code, but links to the DeCSS code. He asserted that, because links provide "instant access" to the disputed material, they should be forbidden as well.
He attempted to discredit the Open Source (nee "Hacker") community's motives by bringing to the court's attention the DeCSS Distribution Contest, and Copyleft's new DeCSS t-shirts, painting it as juvenile and irresponsible.
For some reason, he also called attention to the recent cracking of PacBell's ISP accounts, and CDUniverse's credit card database. Presumably, he was trying to associate the criminal activities of these individuals with the activities of the defendants in the case, both of which "clearly" demand decisive action from the court.
Finally, Mr. Sugarman asserted that, if a Preliminary Injunction is not granted, the message it will send is:
These remarks by the plaintiff's counsel consumed about an hour and a half. Judge Elfving called a 15 minute recess, after which counsel for the defense began.
The first guy (whose name I did not catch) seemed to rely more on bombast and specious details than on concrete questions of ethics and law. Nevertheless, he did raise some interesting points.
The Scientology case was raised again, this time to point out that the Preliminary Injunction granted and affirmed in that case applied only to one person, not to the entire Internet. He went on to cite the cases of Sega vs. Accolade and Vault vs. Quaid, cases in which reverse engineering was upheld as permissible.
He asserted there was only one real defendant in this case, the one who allegedly did the "dirty deed": Mr. Johansen of Norway who originally developed and published DeCSS. If there is indeed a legitimate action that can be taken, it is solely against this individual.
He turned the plaintiff's Coca Cola analogy on its head by stating that one could buy a can of Coke, take it to a chemical analysis lab, figure out what it was made of, and publish the results. Such an act would be entirely proper under the Trade Secret Act under which DVD CCA is suing.
The defense also argued that trade secret law is a "relational tort," enabling an action of one party against another. It does not protect the secret itself.
He asked, "Where is Xing in this case?" If, as submitted, DVD CCA's license requires licensees to take reasonable measures to protect their trade secrets, then Xing has clearly failed in this obligation. Further, he asserted the DVD CCA does not provide code itself, but expects the individual licensees to develop compliant code. Therefore, any misappropriated technology belongs to Xing, not to DVD CCA.
Finally, he made a highly dubious assertion that there was no evidence submitted to establish that DVD CCA were the legitimately assigned licensors of CSS (which has been developed by Matsushita and Toshiba), and therefore were not empowered to bring this action. (This was readily debunked by the plaintiff during rebuttal.)
After he finished, Eben Moglen, Professor of Law from Columbia Law School took over. I don't think I overstate the issue when I say this guy absolutely kicked ass. Besides being a good orator, the man clearly understands technology as well as law. He's written a treatise on the issues of intellectual property in the digital age entitled Anarchism Triumphant: Free Software and the Death of Copyright.
Mr. Moglen basically proceeded to shred the plaintiff's arguments. He pointed out that DeCSS has nothing to do with wholesale copying; DVDs may be bit-for-bit duplicated and will play in any player without the use of DeCSS. He debunked the assertion of "irreparable harm" to the movie industry by doing some basic bandwidth math showing that downloading a 5.1 gigabyte movie will take you 30 hours (DSL speeds), and if you have a direct backbone connection, it'll take ten hours. Wholesale copying of movies in this manner is therefore not a realistic concern.
He raised the plaintiff's assertion that, while it may not be economically viable to copy movies today, these technologies will become cheaper and more available in the future. However, such theoretical future damages are not at issue; the court need only concern itself with what is happening now.
Mr. Moglen went on to describe CSS as extremely weak, and outlined Stevenson's novel attack against the cipher, which involves attacking the hash value to reconstruct the "title key" by which the MPEG stream may be decoded. In such a case, none of DVD CCA's keys are employed. The title key for any disc can be cracked on a Pentium-III in about 18 seconds. He drove home CSS's weakness by mentioning that Mr. Johansen of Norway is 15 years of age. Thus, the trade secret at issue must not have have been very secret, as it was literally child's play to discover it.
With all this, Moglen asserted that no cause of action remains because no trade secret remains. The "secret" in question was obtained by legitimate means, and Stevenson's subsequent work illustrates that none of DVD CCA's alleged secrets need be involved in decrypting a DVD. Had the DVD CCA acted more swiftly in restraining Mr. Johansen, they might have a cause for action. As it is, they've waited too long.
When he concluded, Moglen received light applause from the gallery as Judge Elfving asked for rebuttal from the plaintiffs.
Mr. Kessler assailed the work of Stevenson, saying that it proceeded from the improper DeCSS code by Johansen. Therefore, Stevenson's work, though novel, is "contaminated" by Johansen's alleged breach of the Xing "license", and the trade secret is still protected.
He argued against defense assertions that no license was in force, saying basically, "Yes, there was!" He attacked EFF's citation of the Sega case, stating that it was a copyright case, and that reverse engineering was held to be proper under Fair Use. This is a trade secret issue.
However, he went on to call attention to the DMCA again, stating that, as a matter of "public policy", reverse engineering is held to be improper. Then he flips again, and says they're not citing DMCA, only the Uniform Trade Secrets Act (which has no provisions for fair use).
Finally, the floor was turned over to Mr. Sugarman who (under pressure of time) characterized Professor Moglen's arguments as entertaining but irrelevant. All DVD CCA seeks, says Sugarman, is to take down the DeCSS code and all links to the DeCSS code. They are not seeking damages, nor are they seeking to quash discussion of the merits of the algorithm; only the trade secret itself.
Judge Elfving then thanked counsels, said there was a lot to think about, and would render his decision as soon as possible. Court was then adjourned at around 16:50.
My Analysis and Opinion:
We may readily concede that CSS was a trade secret, developed in secret, and made available under a comprehensive contract that obligated licensees to maintain the secrecy of the techniques used. It also seems fairly certain that the initial cracking of the CSS involved taking apart the Xing player and seeing how it worked. In order for this action to be a trade secret violation, Johansen's disassembly would have to be an improper use.
In order for it to have been improper, Johansen would have to be laboring under an obligation to maintain the secrecy of the Xing code and the CSS algorithm. The DVD CCA asserts that this obligation existed in the form of the shrinkwrap "agreement" which restricted, among other things, reverse engineering. So the DVD CCA's entire case hinges on whether shrinkwrap "licenses" are enforceable.
Let us put aside the fact that Johansen is Norwegian, where different laws and standards apply; and let us also put aside the fact that he is a minor, who likely can't be bound to contracts without parental consent (again, Norwegian law may differ on this point). Let us concentrate instead on this contract that, by the most tenuous forms of assent, may be considered in force and remove from the licensee a litany of valuable rights, including reverse engineering.
As I stated earlier, it is my adamant position that such documents are pure fiction; that they are not and should not be taken seriously. These instruments have little basis in law, and no basis whatsoever in simple ethics. They run counter to the real and reasonable expectations of consumers when they purchase software; that a sale has taken place, and they hold title to that particular copy of the software, subject to copyright restrictions. The "agreements" seek to alter the terms of the sale after the fact.
Further, these contracts attempt to escape vendors from the provisions of consumer protection laws, "lemon" laws, and remove from consumers their rights under Fair Use provisions of copyright law and, in some cases, the First Amendment (by forbidding discussion of benchmarks). And all one needs to do to assent to such onerous conditions is to, "install and use the software."
If A.H.Robins had attached such a license to its Dalkon Sheild, would it have been upheld? Would thousands of women around the country have found themselves unable to seek damages because they had "agreed" to hold A.H.Robins harmless? If Black&Decker attached such a license to its power saws saying you could only use Black&Decker saw blades, could it be enforced? We might concede they could cancel the warranty, but could they sue you for breach of contract, as DVD CCA has done over CSS?
Even if we were to presume such licenses are enforceable, how could they be said to apply to minors, who cannot be bound to contracts without parental consent? Must we then require that computer stores not sell software of any kind to anyone under age 18?
The idea is worse than ludicrous, it is offensive. No credible argument can be brought to bear that shrinkwrap licenses have any constructive use or benefit -- for consumers or publishers -- much less any foundation in ethics and basic human decency.
Some suggest that the "parade of horribles" that shrinkwraps enable has not happened, and is not likely to happen. I submit that a California corporation seeking a broad injunction, reaching beyond the borders of the state and even the country, to constrain domestic and foreign nationals from engaging in legitimate, ethical behavior to be a "horrible" that even the most paranoid among us could not have anticipated. There can be no further doubt that shrinkwrap licenses are a big, fat, ugly problem, and must not under any circumstances be allowed to stand.
Those who might suggest the GPL is weakened by such a position need not worry. While most commercial software "licenses" purport to constrain use, the GPL constrains copying. Absent a license of any kind, you still have the right to use your lawfully obtained software. You would not, however, have the right to make and distribute copies; the default conditions of copyright law apply. (This is true even if you're a minor.) Right to Use is concomitant with purchase; right to copy is not.
It is difficult to predict how the Judge will rule. Unlike the TRO hearing, the plaintiff was very well prepared. Both sides presented their arguments well. Judge Elfving stated that he wishes to be thorough, and will doubtless spend a good deal of effort considering the arguments. Still, both sides were articulate, and it will depend on who Judge Elfving chooses to believe, so the decision could go either way. Cross your fingers...
Schwab
I think it would make the perfect mascot for the Mozilla project.
Schwab
As I'm sure is obvious by now, many people would like to see Micros~1's comeuppance in the form of an actual court finding of guilt and wrongdoing against the company. While the DoJ's anti-trust suit has served this purpose fairly well, many hoped Corel's suit would drive the point further home in more concrete terms. But the case has been settled out of court without a final judgment and for terms which, from publicly available information, are barely significant. It's developments of this kind that allow the disingenuous to claim, "Micros~1 has never been convicted of any wrongdoing."
From outward appearances, your case looked strong. Even if Micros~1 appealed a judgment against them, my youthful naivate believes that Corel could have obtained superior settlement terms after a judgment had been entered. Without going into specifics, what factors weigh in a decision to continue to litigate a strong case, or to settle out of court prior to judgment?
Schwab
...And then get someone to "surreptitiously" point it out to Ford's PHBs.
My suggestion: Fake up an email and run it through a bunch of anonymous remailers. Claim to be a cracker who has access to information that would be available to someone who penetrated only the outermost security layer. Mail it to yourself at Ford. Forward to supervisors with the heading, "We got a problem!" When the emergency meeting is convened, drop on the table your prepared action plan for creating reasonable security and say, "We're going to do this."
Make sure the first thing you do is install RCS/CVS/whatever version control on all security measures, and log everything. This way, they can't later claim your fake email was a ruse to install trojans, since all checkins were logged and can be reviewed.
Hey, might work...
Schwab
Could someone in Asia pick up one of these counterfeit discs and send it to the EFF legal team? I'm sure it would be appreciated in court as evidence supporting our position.
Schwab
Have you read your ISP's Terms of Service contract? Check out this passage from RCN.com's Service Contract:
Note: Proof is not necessary; suspicion is all that's required to get your account pulled. If you've just bought a year's worth of DSL service, you could be out a few thousand dollars.
Then they're in it for the wrong reason.
If you're in this solely to make money, then you're a mercenary, not an artist.
We cannot offer them that assurance. The fundamental nature of digital media will thwart all attempts to do so. It was designed to copy bits infinitely and cheaply. Welcome to the real New Economy. Deal with it.
Uh, no. Those two guys in Norway wrote the software. The DVD CCA created the keys. But keys are not protectible under IP laws (nor should they be).
Absolutely correct (you get a cookie). We will have to develop new foundations for compensating people for their work. I encourage people to start thinking about them.
You are conflating concrete property (my bank account) with sales projections ("We might have sold this many DVDs if it hadn't been for those Commie-pinko pirates!"). Analogy fails.
Forgive me, but what utter nonsense. DeCSS is absolutely no threat to the sales of DVD players or discs. Even if you had a T3 into your home (at $5K/month), unsanctioned copying of DVD movies over the Internet is not going to happen; do the bandwidth math to see why. "Piracy" is simply not a problem.
Inaccurate. The appeal of DVDs to movie studios is that:
At the risk of completely torpedoing my credibility here, would your theorem apply to slavery as well? There were a lot of businesses in the American South 200 years ago that relied on slavery. Those businesses were killed (or, as it finally turned out, completely restructured) in the name of "freedom".
150 years ago, real people spent a lot of money digging holes in the ground looking for gold. None of them labored under the delusion that, just because they had invested a considerable sum into a hole, they were entitled to find gold at the bottom of it.
If you walk into the Digital Universe and honestly think you can prevent copying, then you've failed your fiduciary duty to yourself and your shareholders by not doing your homework.
Digital bits are -- and forever shall be -- easily copied at zero cost. Period. It is possible to do healthy business within this reality (NASDAQ:RHAT). Denying the reality only makes you look foolish and sets you up for one heck of an ulcer.
Schwab
Hi, Andrew!
Frankly, I'm not sure UCITA offers much aid to enforcing the GPL. The GPL, and most other OSS licenses, differ in a key way from traditional shrinkwrap "agreements".
Shrinkwraps state, "You must agree to this wide array of covenants and restrictions, or we forbid you from using this product." The GPL, on the other hand, states, "As a lawful posessor of this code, you use it in any way you like. But because it's copyrighted, you can't make or distribute copies without a license. We will grant you a license to make copies if you fulfill these conditions:..."
Absent the UCITA, either shrinkwraps or the GPL (or both) may be found to be non-binding. If so, then default conditions of law apply. If the GPL is found to be non-binding, then copyright law by default precludes you from making and distributing copies. OTOH, if a shrinkwrap "agreement" is found to be non-binding, are we to presume the software can't be used at all?
It is my firm belief that, in retail venues, Right to Use is concomitant with purchase. I think a software publisher would have an uphill battle arguing that a person who lawfully obtained a piece of software can't lawfully use it without an enforceable "agreement" in place.
Schwab
_____________________________________
I'm probably going to lose people because of the length of this post, but I'm going to try anyway, because this issue is very important to me. There are a lot of points in a lot of different messages, which I've collected and replied to in this single post. Throughout, I will use admittedly charged terms like 'foolish', 'silly', and 'childish'. I will justify the use of these terms in due course, so hang in there.
I am not disputing id's right to do anything. As creator of Quake, they have the absolute right to do anything they wish with it, including not release it at all. They don't owe us -- and we are not "entitled" to -- a single thing.
No. What I'm objecting to is the foolishness of adding copy protection at all. Digital media is a universe of infinite abundance, so how do you justify hoarding anything? Don't answer yet; I'll come back to this issue later...
It will be very interesting to compare sales figures of Unreal Tournament versus Quake 3 in about six months. UT simply has check-for-the-CD copy protection (which is still silly, but much less silly than cryptographic authentication).
Again, I'm not disputing their right to impose protection; I'm arguing that copy protection is socially unredeeming, and could lead to bigger problems down the road.
No, it isn't. Theft is when you deprive somebody of their property, such that you now have it, and they don't. Copying creates a new instance; the original owner still has his/her original object. I covered this in my essay.
I contend that it is, precisely because it's artificial. Again, I'll justify this futher in a bit...
The fate of Quake 2? Quake 2 sold millions of legitimate copies, and id Software made tens of millions of well-deserved dollars, even in light of the fact there were enormous numbers of unsanctioned copies. Seems to me they would want to repeat the fate of Quake 2.
Possibly not. But in a universe where there's infinite abundance, how can you justify, in social terms, demanding people not make copies?
id are certainly competent enough to keep their servers running. But if some nincompoop with a backhoe slices the fiber to their building, then you're hosed, and we're back to a single point of failure again.
Just because a thing is technically possible or available doesn't make it a good idea. There are societal consequences here which most people haven't thought about.
Yes. Big fat doubts with green hair growing on them.
Fact: Software publishers continually lament "losing" billions of dollars a year to unsanctioned copying. They routinely refer to these unrealized revenues inaccurately as 'theft'. Yet these 'thefts' are never reported to their shareholders. Fiduciary duty requires thefts, especially of the magnitudes claimed, to be reported to shareholders in the company's financial statements. Since the "losses" from unsanctioned copying are never so reported, we may conclude that true 'theft' is not occurring.
Fact: Despite "losing" billions of dollars a year to unsanctioned copying, software companies, on balance, continue to post rising profits. Micros~1, which portrays itself as the industry's biggest victim of unsanctioned copying, has posted record earnings quarter after quarter for years. Thus, these "losses" are not really occurring.
Fact: No software company has ever been driven out of business due to unsanctioned copying of its products. Such business failures are due to poor quality products, poor management, or lack of business acumen.
Fact: Quoted figures on industry "losses" to unsanctioned copying are completely theoretical, based on idealized extrapolations of what-if scenarios. It is impossible to gauge the precise amount of unrealized sales because it requires measuring events (sales) that didn't happen. You'd have to fork() a copy of the universe where unsanctioned copying was impossible, and compare the results against the real universe. We must not take the SPA's numbers seriously; not only are their numbers, ultimately, made up, they refuse to even disclose how they made them up.
So, yes, the idea that "piracy" is a big problem is still very much open to debate.
Nowhere did I suggest id is into charity. Nowhere did I suggest that id should not be compensated handsomely for their work.
What I am suggesting is that, due to the infinite copyability of digital bits, the economic and social rules are different, and that copy protection is an attempt to force an old ruleset that, in the long term, cannot work. (Hang on, we're nearly there...)
...And people who want to keep the digital universe free and unfettered, so that its infinite abundance may be enjoyed by all.
As for being a w4r3z pUPpY, please be assured that, once Quake 3's copy protection is removed, I will be off to Fry's with my wallet so fast, you'll see a red shift on my butt.
Okay. Remember how I said I would try to justify all my weird claims up there? Here it comes:
I'd like you to indulge me for a moment, and use your imagination to picture what life might be like on the Starship Enterprise. More precisely, what would life be like where everyone had access to a matter replicator? What would society be like? What would the economy be like?
Let's take the economic consequences first. What happens to a market-based economy when you start handing out replicators? It collapses, that's what. A market-based economy relies on scarcity and inconvenience to operate. If you introduce a replicator, scarcity and inconvenience vanish, and suddenly you can't charge money for physical objects anymore, since your intended market is now simply copying them. Just ask your friend Brad to borrow his BMW for five minutes, stick it in the replicator, *ZAP*, and you get to have a BMW, too.
Okay, so what are the social consequences of this? Do we decide that copying objects is 'theft', or even unethical? Well, really, how can you make either claim? It isn't theft, because no one is deprived of anything. I also have a hard time seeing how it's unethical. If I copy your stuff, you are not diminished or deprived in any way; you still have all your stuff. It's just that now I have a copy of it, too. Why would that be a bad thing?
You may argue that such copying dilutes the value of your property. But if, on the Starship Enterprise, everyone has access to a replicator, then everyone's in the same boat (so to speak). Everything is copyable, and everyone has copies. Thus, the 'value' of your copy is not its relative scarcity (since scarcity doesn't exist), but how it enriches the quality of your life. You would select what to copy based not on what you could afford, but its utility, design, and its aesthetic qualities.
Let's say you were an artist in this future world, and you had just spent the last two years building a sculpture. Everyone you show it to thinks it's wonderful. Now, as the creator and owner of this sculpture, you have the right to demand that no one copy it. You may even be able to enforce this desire with force fields of some kind. But why would you do this? Why, with infinite abundance all around you, freely available to everyone, would you want to keep this fine creation to yourself? More importantly, how would the society around you view this behavior? Might they just possibly see it as foolish?
If a Star Trek universe is too abstract for you, let me offer a more familiar scenario: A schoolyard. There are plenty of balls for all the children to play with, all of them identical. Yet, invariably, some children will latch on to a particular ball and yell, "My ball!!" If someone tries to take it away from them, they will get upset. There they are, standing in the middle of an abundance of balls, all of which are free for them to grab, yet they will insist on a particular one being "theirs." We try to discourage this behavior in our children, because it's foolish.
The reason I bring these analogies into play is because the exact same forces are at work in the memories of our computers. Just as the crew of the Enterprise stand in the midst of infinite material riches, we stand in the midst of infinite digital riches. Therefore, the same economic and social consequences apply to digital works. Yes, you have the right to impose copy protection, and the technical means, but if, economically, it doesn't matter, and it makes you look socially foolish, why would you do it?
You're probably thinking I'm being disingenuous here. I'm not. I fully acknowledge that, as of this writing, the digital universe is a completely different thing from the physical universe. In the physical universe where we all live, we use the tool of the market-based economy to motivate people and get our basic needs met. Yet the digital universe heralds an age where this will no longer be true. The two universes are existing simultaneously side by side; how do we reconcile the two?
I haven't the faintest damned idea. We are still reacting to and building social models for this new universe. And this is why I feel that copy-protection is so wrong-headed. It's an expediency that potentially short-changes our replicator-laden future by causing the wrong social models to be built. The physical universe makes it a very compelling expediency, true, but it could have staggering consequences when the physical universe finally catches up and replicators appear (and they will appear; they're too cool not to).
So, if we were to acknowledge that copying is going to happen and that it's okay, how would we motivate people to create things in the first place, and compensate them for their work? This is the area that needs exploration, and I encourage everyone to think about it.
To be honest, I have no idea how our society would react to replicators. It may turn out that, as primates, we are biologically compelled to be territorial about things, even when it doesn't matter. We may decide that wholesale copying of physical objects is wrong. I don't know; I'm not an anthropologist. Since we have no idea what's going to happen, I personally would prefer to work toward and build the future toward which we as a species seem to have been striving for centuries: Unrestricted, infinite abundance for everyone at zero cost.
And that's why I can't support Quake 3's copy protection. It's not because Quake 3 is a poor product (it's excellent), or because id Software are evil (they're not), or even because it's too expensive. It's because copy protection is not part of the future I want to build.
Schwab
Mr. Kamer's article offers an excellent argument, complete with citations to various findings of law to back it up. I had no such background when I wrote my editorial, By Reading This Article, You Agree to Subscribe to This Magazine for 25 Years . If you're interested in a philosophical (as opposed to legal) background into why shrinkwrap "licenses" are ethically indefensible and should never be taken seriously, I hope you might do me the privilege of reading it.
Schwab
Recent stories on Slashdot have told of the ongoing "tennis match" between digital content providers versus consumers and technically skilled people. The recent cracking of DVD's Content Scrambling System (CSS) lent ammunition to the opinion held by computing professionals and users that copy protection systems are doomed to fail. The effort has been likened to building a dam against the ocean; a foolish and useless exercise. In Slashdot discussion fora, the point has often been raised, "If you can perceive it, you can copy it. What are they going to do, encrypt the bits all the way to the speaker/electron gun?" If the Copy Protection Technical Working Group gets its way, that is precisely what's going to happen.
I received a piece of email spam today, which actually turned out to be useful (probably the only time that's ever happened anywhere). It directed me to a flat panel display industry group. Among others, one of the links pointed to the California Display Network, which had a link pointing to technical info on flat panel technology. Since I currently earn my living writing graphics card and display drivers, I clicked through to see what I could learn.
I found an entry for an overview of digital visual interfaces, provided by Silicon Image. As I reviewed the headings of the slides, one entry stopped me cold: Conten t Protection Status. Content protection? In a flat panel?? Yup: "Implementation of DVI content protection is suitable for PCs and monitors." [emphasis mine]
Thus began an evening of link clicking and Google searches to find out what this off-handed remark could mean. The slide made mention of the 'CPTWG'. This is the Copy Protection Technical Working Group, a consortium of content providers (movie companies), consumer electronics manufacturers, and players in the IT industry. This is the same group that developed CSS for DVD players.
One paragraph from the above page is particularly disturbing:
The most recent meeting of the CPTWG was yesterday, 8 December, 1999. Their meeting announcements may be found here. According to the December meeting announcement, the next meetings will occur on 11 January, 2000, and 9 February, 2000. It costs $100 to attend.
The attendance roster from the November meeting (PDF file, sorry) lists a very interesting, and possibly worrying, mix of organizations. A partial list of representatives included:
If you download the roster and read closely, you'll see every major piece of your computer represented. There is no doubt that at least one part of your computer -- your CPU, your RAM, your disk drive, your graphics card, your monitor -- is manufactured by one of these companies.
If you look further still, you'll see there are no consumer advocacy groups listed.
What are they all working toward? Quite simply, to prevent you from using your lawfully obtained digital material in any way they don't want.
Here's one example of how they'll do it: If you've visited Fry's or CompUSA recently, you'll notice that full-size flat panel displays are starting to appear. Currently, most of these displays are based on the old VGA analog signals, which are converted into the digital signals needed by the panels. The Digital Display Working Group is working on a new connector and signalling standard called Digital Visual Interface (DVI) that will allow computer displays to go all-digital. You won't need a DAC on the video card; the digital signals will be fed straight through to the display. Image fidelity will be much higher, since there won't be any intervening DAC/ADC conversions. Version 1.0 of the standard has been published and is available for download (PDF format). The DVI spec currently does not stipulate copy protection measures. However, plans are in the works to incorporate it.
Intel is one of the primary contributors to this effort. On Intel's developer site, they have some papers on copy protection for IEEE 1394 (Firewire) digital streams. In two separate articles, 1394-based Digital Content Protection: an Intel Proposal, and Content Protection for IEEE 1394 Serial Buses (the latter being a Powerpoint presentation masquerading as a PDF file), Intel outlines its proposal for protecting digital content over Firewire. By using cryptographic authentication techniques, a device offering digital content will "handshake" with other devices on the bus to assure that digital data is only received by, "compliant devices." In a revised overview of the proposal, IDF Talk: Content Protection for the IEEE 1394 Bus, Intel offers concrete implementation details, including:
The full proposal (currently version 0.91), with lots of technical detail, is mirrored on CPTWG's site (the links to Intel's site don't work).
Intel's proposal also recommends that the copy protection system be field-upgradeable to thwart ongoing attacks, and that it should be possible to revoke (read: disable) a device determined to be "compromised." (The tone of the proposals is also interesting. It's previously been thought that, because of USB, Intel is hostile to IEEE 1394. Yet these proposals suggest that Intel's quite enthusiastic about 1394... Once copy protection is incorporated.)
Intel's proposal mentions only IEEE 1394. However, it also mentions that there's nothing preventing the technique being applied generally to any bi-directional link. So for all occurrences of '1394', substitute 'DVI', and you've got an idea of what to look forward to in your new digital monitor. And your new DVD player. And your new HDTV set. And your new USB speakers.
Intel goes even further in their paper, A Framework for DVD-Audio Content Protection. In it, the author suggests that DVD-Audio recorders permanently remember the IRSC (International Standard Recording Code) of every song the device is asked to copy, so that it may only be copied once, period. They go on to suggest that the recorder could have a modem built-in to authorize (read: purchase) the ability to make additional copies.
In short, through this industry consortium, Hollywood proposes to exert control over every link in the digital chain, from the digital camera, to the disk drive, to the CPU, to the graphics card, to your display. They will decide what rights you have. Even if a court decides Fair Use includes multiple copies for personal use (such as assembling a video montage), it won't matter. Your computer will still refuse to make the copies (and probably fink on you, as well).
This coordinated effort is ostensibly to combat unsanctioned copying (which the industry chronically refers to incorrectly as 'theft' and 'piracy'). However, no one has ever been able to provably quantify the value of unrealized sales due to such copying. All dollar estimates that have been published are just that: estimates, based on idealized extrapolations of what-if scenarios. Moreover, although the industry claims to "lose" billions every year, they continue to post record profits. Finally, despite the proliferation of CDR drives and the Internet, most unrealized sales are the result of organized mass counterfeiting rings, not casual copying. None of the proposed methods I've seen appear to thwart mass counterfeiting at all. So clearly there's some other reason for all this.
The thing that puzzles me most is why the computer and consumer electronics industries haven't told Hollywood to take a hike. Intel's copy protection proposals state, in bold letters, "No content protection = No Hollywood content." This belief is taken as axiomatic by all the players, and appears to be the driving force behind the entire effort. This belief is also false.
Audio on CDs are recorded as plaintext, and the music industry continues to earn rapacious profits. Even the with the advent of CDRs, no music industry executive in his right mind would suggest dropping CD sales and going strictly with cassettes and vinyl. If nothing else, the manufacturing costs for CDs are lower than those for cassettes and vinyl. Likewise, DVDs are tremendously cheaper to produce than videotapes. Videotape duplication is a labor-intensive process; DVDs can be stamped out automatically. The savings in cost-of-goods alone would more than balance against any unrealized sales from casual copying. Corporate shareholders, always mindful of the bottom line, will also demand that the studios move to the cheaper, higher-quality process, copy protected or not.
The fact is that the computer and electronics firms are in the driver's seat, and are free to dictate how the new digital formats will work. Hollywood will use whatever format becomes popular, whether it has copy protection or not. They may grumble about it, but they'll use it. The economics afford them little choice.
We are only now beginning to explore the social and ethical consequences of a Star Trek-like universe where everything can be infinitely duplcated at zero cost. We have no idea where things will end up. But now is not the time to start erecting electronic walls and imposing artificial scarcity. The ignoble and richly-deserved death of DIVX showed -- fairly unequivocally, I thought -- that consumers want to make free, fair use of their digital media, without interference from outside. I believe its death reinforces the future toward which we've been pushing for centuries: Increased abundance at reduced cost.
Nevertheless, the CPTWG and the organizations supporting it are blindly moving forward. It may turn out it's impossible to dam the ocean, but they're gearing up to give it one hell of a try. We can only hope that the lesson of DIVX will be repeated until it is learned.
Schwab
So what you're saying is that, if I get one of these gadgets for myself, I can digitally remove all the billboards, ads, and other such crap I see on televised sporting events? The race cars will actually look like cars and not a cacophany of stickers and decals? The football players won't be sporting oversized Nike logos anymore?
Does Fry's stock these gadgets? I am so there...
(Author's Message: In the hands of only CBS, NBC, et al, such a device has vast potential for abuse. In the hands of an individual viewer, though, it's an unbelievable tool of empowerment.)
Schwab
We will now deconstruct the bombast of the religious extremist, showing that you don't need brains or critical thinking to be a prophet, only a mouth.
Ah, yes, invoking America's Founding Fathers as if they were religious icons.
Fact: Nearly all of the Founding Fathers were non-Christians. Washington in particular was a deist (look it up). Many were atheists. Moreover, it was because there were dozens of competing sects on the continent at that time that separation of church and state was written into the Constitution. The reason you're alive today (and not "ethnically cleansed" by a state-sanctioned faith) is because of this principle. Revere it.
I got news for you: There are no religious underpinnings to our nation. The United States is a secular state. Period. The progress we've enjoyed has been the combined work of Christians, Jews, Moslems, Quakers, Puritans, Deists, Mormons, Pagans, and even -- dare I say it? -- Scientologists. No one faith enjoys any particular favor. This is the unique strength of our country. Celebrate it.
As for libraries distributing sexually explicit material, libraries have an obligation to make available all forms of literature and human expression, both base and exalted.
Oh, of course. I guess that's why 250,000 lesbians are massing at the Canadian border, preparing to invade Michigan. And when they do, all the University students who have been brainwashed by subversive "liberals" in the faculty will unwittingly aid in the insurgency, and before you know it, women all over America will be wearing comfortable shoes. Horrors!
Get a grip.
Got more news for you, pal: These "enemies" are responsible for one of the most extraordinary economic upswings in the last 100 years. Weirdos designed and run the digital infrastructure you enjoy today and use to flame us. Are you quite sure you know your audience here?
I'd counter-flame you with a well-reasoned proof as to why this is utter bullshit... If I thought it would do you any good. So I'll simply offer the following axiom, and invite you to try in your furtive way to disprove it:
"Lifestyles" are not contagions. If your neighbor is gay, that doesn't mean you will become gay, too. More generally, the personal preferences and choices of the people around you do not prevent you from making your own choices. You are free to choose whatever you want. Others may choose something else. You may not like it, but who made that any of your business?
Oh, you mean like Rush Limbaugh?
Example: I want to go to the library and check out Catcher in the Rye. I can't find it because some religious extremist had it banned, or outright stole it off the racks and destroyed it. How does this enhance, as you put it, my freedom and individual rights?
Freedom includes the freedom to make mistakes. Perhaps it is a mistake to read Catcher in the Rye. I won't know until I've tried. Who are you to stand in my way? If you truly believe that libraries have become a den of iniquity and a source of society-destroying Commie-pinko propoganda, then forbid your children from ever going there.
You have choices. So do I. I'm not about to use the power of the state to curtail your choices; I'll thank you to return the favor.
Schwab
I wrote this essay almost five years ago. Some of you may enjoy it.
Personally, I wish the puppeteers would stop coming forward, making the corpse flop around a bit and proclaiming, "Look! It lives!"
I'm really tired of these charlatans playing off (what's left of) the loyalty of the Amiga crowd. If you're going to do something with it, do something with it, and stop jerking people around.
Schwab
The culture you postulate is partially explored in the film Rollerball. Go rent it.
Schwab
In Charles Babbage's time, an automated calculating machine that could automatically draw pictures that were perspective correct would have been unthinkably complex. It would have been an immense job.
And, in a sense, it was. It took us 100 years to get there.
Enjoy Quake.
Schwab
As the ball drops in New York's Times Square, as millions of people count down the last seconds, the instant all the digits flip over to 2000...
...A big sign lights up, reading EXTRA BALL!
Schwab
I wrote an editorial on this subject entitled, By Reading This Article, You Agree to Subscribe to This Magazine for 25 Years , detailing why shrinkwrap "agreements" are legally and ethically indefensible. No one should take such documents seriously.
Schwab
Hollywood made their intentions clear today: Your computer no longer belongs to you, but to the corporations that provide "content" for it.
Today, in Santa Clara County Superior Court, Judge William J. Elfving presided at a preliminary hearing in the case of the DVD Copyright Control Association versus... well, everyone. The judge heard arguments to determine if a Temporary Restraining Order should be imposed on the entire Internet forbidding the dissemination of the now-famous DeCSS decryption code.
I woke up this morning at 06:10, an abhorrent waking hour for a software geek. I then proceeded to do something which, if you know me at all, is completely out of character: I put on dress slacks, shirt, and a tie. I hadn't tied a tie in several years, so it took a couple of tries before I got it right. The drive to the courthouse in San Jose was amazingly uneventful. Highway 101 southbound during rush hour is ususally a complete mess.
I was one of the first to arrive at the courthouse. After having my bag X-rayed and depositing my set of screwdrivers with them, I found myself joining a growing group of people waiting for the court offices to open so that we could find out to which courtroom the case had been assigned. Some of the people present were well-known names to most Slashdotters, including Bruce Perens and John Gilmore. I imagine we were a bit of a conundrum for the law enforcement officers present, no doubt used to parades of well-dressed lawyers who, unlike us, know exactly what to do and where to go.
At 08:15, the offices opened, and counsel for the plaintiffs filed their complaint, which was assigned a case number. We then made our way to courtroom two on the second floor, awaiting the doors to open. By the time the doors opened, we numbered about thirty people. Plaintiff's counsel pretty much kept to themselves, while we made a slight racket talking to each other. One individual (don't know who) started passing out copies of the DeCSS code, both in printed form and on repurposed Microsoft Office setup floppies. One such set was handed jovially to plaintiff's counsel.
Interviews were also being conducted by, among others, a reporter from WiReD Magazine, and Tracy Romine for KCBS radio.
Eventually, the doors opened, and we all became quiet as church mice and filed into the courtroom. Once counsels for both sides were ready, Judge Elfving was announced and entered, and court was in session.
Appearing for the plaintiffs were three lawyers from the law firm representing the DVD CCA. Appearing for the defense were two lawyers from the EFF. Of the fifteen or so named defendants and the 500 John Does named in the DVD CCA's complaint, only one appeared in court, summons in hand, whom the EFF were representing.
The hearing was to hear the filing of the complaint, and to consider imposing a Temporary Restraining Order (TRO) which would forbid everyone named in the complaint (basically the entire Internet) from further distributing the DeCSS code. If imposed, this order would be effective until the date of the next hearing, at which will be considered imposing a much longer-lasting Preliminary Injunction.
The first order of business was to set the date for the next hearing, and the dates for the filing of notices, papers and arguments prior to that hearing. The next hearing to consider the Preliminary Injunction will be at 13:30, 14 January, 2000.
Finally, we got to oral arguments for and against imposing a TRO. At this point my report gets hazy, as I didn't start banging out notes until after the recess. Basically, plaintiff's counsel repeated the main thrust of the complaint arguing that, if left unchecked, irreparable, serious harm would befall the DVD CCA, numerous Silicon Valley firms, the movie industry and, presumably, the American way of life. Counsel also produced the copy of the DeCSS code which he'd been handed earlier, and asked that it be admitted into evidence, and requested that its contents be sealed. This request drew polite laughter from the gallery. The Judge nevertheless agreed to the request, in the interests of not prejudicing the case, and admitted the exhibits and sealed them.
EFF counsel then began, and proceeded to characterize this case as hinging on freedom of speech. They drew upon numerous citations, including a recent decision by the Ninth Circuit Court of Appeals, which found that code is speech. Defense made note of the fact that, in free speech cases, prior restraint of speech is presumptively invalid unless extraordinary circumstances are present.
The EFF also noted that the true original source of the DeCSS code is not known, therefore characterizations about its origins are speculative. Plaintiffs assert that it was obtained illegally; defense asserts there's no evidence or inference to that effect.
The EFF then went on to debunk the plaintiff's claim of irreparable, serious harm. There is absolutely no evidence to suggest that sales of DVD discs, DVD players, and DVD encryption licenses have suffered due to the release of DeCSS. Defense made the revealing statement that DVD discs may be copied without the use of DeCSS.
Defense also drew notice to a similar case in Chicago concerning door locks being reverse-engineered by locksmiths; the lock manufacturer attempted to sue for theft of trade secrets, and lost.
Plaintiff's counsel then rebutted the EFF's arguments, claiming that this case had nothing whatever to do with free speech; that in no way were the plaintiffs seeking to quash discussion about this case. They asserted that this was a clear-cut case concerning misappropriation of trade secrets, and that all they claimed they were interested in was halting further dissemination of their trade secrets. They asserted that all parties "know, or should have known," that the DeCSS code was obtained illegally.
DVD CCA's arguments seem to hinge rather pivotally on the license "agreement" that accompanys the Xing player. CCA states that, in order to be able to use the software, you must become a party to an "agreement" that, among other things, forbids reverse-engineering. If the "agreement" is binding, then the Xing keys were extracted in violation of it, and thus the DeCSS code is illegal. (I wrote a long editorial on the subject of shrinkwrap "agreements", and why they are ethically and legally indefensible. It may be found here.)
The plaintiff then went on to assert that, if a TRO was not granted, a campaign would ensue on the Internet to spread the DeCSS code as far and wide as possible, until it finally reached the hands of an "innocent person" who could not reasonably be shown that they "should have known" the code was illegal, at which point CCA's trade secrets would be lost forever.
The EFF took the floor again, and cited the recent cryptography case in the Ninth Circuit Court of Appeals, where it was found that computer code is speech, and thus protectible under First Amendment auspices. They reasserted that there was absolutely no evidence to suggest that the disputed material was obtained improperly.
EFF also made the point that the Xing player may be inspected and analyzed without ever seeing the "license" that purports to govern its use. CCA tried to claim, "Hacking around the license is itself improper," but the EFF lawyer corrected him, saying, "I did not suggest hacking was employed."
Finally, Judge Elfving retired to his chambers to consider the arguments, and court was adjourned.
Our group filed out of the courtroom, and eventually ended up in the courtyard outside. There were some members of the press conducting additional interviews, including Tracy Romine of KCBS radio, who interviewed Bruce Perens, John Gilmore, and also snagged a soundbite from me.
Most of the group then wandered off to have lunch at a Cuban restaurant selected by Chris DiBona, which I couldn't find, so I settled for the nearest Hobee's for a very late breakfast. Afterwards, I headed back to the courthouse, made another trip through the metal detector (they didn't take my screwdrivers this time), and went upstairs to courtroom #2 to see if there were any new developments. No one knew if the judge had rendered his decision yet, so I sat down in the hall and started to write this report.
As I did so, at around 14:30, Judge Elfving walked past. I asked if he had rendered a decision on the TRO yet. He said he was still studying the issues and would have a decision by the end of the afternoon.
Sometime later, Dan "Karma Whore" Kaminsky ( :-) ) walked up, and we got to chatting about the case, the Internet, the nature of digital media and its social and economic implications, the legitimacy of shrinkwrap "licenses", and so on. Around 16:30, we were joined by a reporter for the San Jose Mercury News, and asked us about what had brought us there.
Dan focused on his desire to play DVDs on his Linux box, asking the question, "Why shouldn't I be able to do that? More important, why should a movie studio have the power to tell me I can't do that?"
I preferred to focus on preserving the freedom to explore. "I taught myself about computers by taking apart other people's stuff, understanding how it works, and using that knowledge to build new stuff. I have a good job today because I had the freedom to make those explorations and gain the knowledge and skills I now have. They're trying to tell me that's illegal. I don't buy it."
The reporter also asked what possible reason, other than copying, could there be for DeCSS to exist? I tried (probably unsuccessfully) to draw a parallel to that neato display hack, Cthugha. Since the images generated by Cthugha are the direct result of the copyrighted digital data coming off the CD, are the generated images therefore covered by the same copyright? Since the publishers of the CD didn't explicitly grant the right to use their CD in this particular way, does that make it illegal, or even unethical, to do so?
While we were discussing this, around 16:30, one of the court employees emerged from the judge's chambers and informed us that the request for the Temporary Restraining Order had been denied. We got a brief look at the document issued from the judge. No reason was given for the denial; it was simply the proposed order written by the plaintiffs, with the TRO sections crossed out, effectively turning it into a notice as to when the next hearing would occur. Judge Elfving was unavailable for comment.
And thus ended an unusually long and interesting day. The San Jose Mercury reporter left, and Dan and I parted ways. I headed home and finished this report. Traffic on Highway 101 was, once again, astonishingly good for five PM.
The next hearing is at 13:30, 14 January, 2000. It's a Friday afternoon. I expect the session to be packed.
Schwab
Uh, not precisely. The "legit" MST3K crew never did Trek-5. It was a fan production. You can find out all about it from this guy.
Schwab
Oh, you mean like the ExecuCizer from Woody Allen's film Bananas?
Schwab