I have copyrighted works under protected with PGP. I did not concent to the TPM I use being circumvented. Bruce's description of this vulnerability is clearly a circumvention technology that will be used to pirate my work and is thereby illegal under the DMCA.
I'm going to file a lawsuit against Bruce and Slashdot and anyone who links to Slashdot and anyone who reads the article and anyone who points at or otherwise refers to a person who reads the article. In fact, Bruce himself is circumvention technology, so I'm suing his parents, too, along with the major airlines, both of which have distributed Bruce.
The 2nd Circuit already ruled on the defense's appeal of Kaplan's denial of recusal. The appeal was denied. IANAL, so I don't know whether the defense gets any other chances, but I think it is unlikely. However, the 2nd Circuit might be empowered to conclude that Kaplan's decisions were so bad and contradictory that the defense deserves a new trial with a different judge.
I believe that you are refering to the defence's attempt to get a "stay", which means that the Appeals court would have stopped the proceeding completely. The fact that the 2nd Circuit didn't choose to do this doesn't really imply a whole lot, and an appeal is still alive. (I could be wrong, IANAL).
I think a stay would have been a pretty surprising thing. If you read what was said in the Panama v. Am. Tabacco, they said that fact pattern was a "close" call, but that recusal was warrented. This issues here are similar.
I strongly believe that judge Kaplan was hopelessly unable to be impartial. As you all know, Kaplan's previous firm represented Time Warner often, and did so on DVD antitrust matters while Kaplan was there. Kaplan admits this, but ruled that it did not warrent recusal.
If/when the 2nd Circuit reviews Kaplan's denial of recusal, I suggest that we submit a brief/petition urging the Appeals court to find that recusal was warrented. If recusal was wrongly denied, all of Kaplan's opinions, decisions, and orders will be vacated. The standard for recusal under 28 USC 455 is:
"Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal?" United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)
Note that the standard requires only that "the trial judge's impartiality could reasonably be questioned", not that they must be proven. It is a "significan doubt" question.
As a matter of precedent, see the discussion of Republic of Panama v. American Tobacco Company, Inc. No. 99-30685 (5th Cir. 7/20/2000) in a post I made on openlaw. In that case a judge whose trial association submitted a brief on a "tobacco matter" in an unrelated case should have recused himself even though he did not take part in writing the brief.
Given these standards, do any of the reaonable people out there have "significant doubt" as to the judge's lack of impartiality?
Actually, I do own the content, if I recall what I've read on copyright law correctly. The MPAA has been saying that I don't, but I've paid them money for a copy of a copyrighted work. I OWN that copy, but I cannot create additional copies, except as allowed by fair use legislation.
"This Court holds that transactions making up the distribution chain from Novell through NTC to the end-user are "sales" governed by the U.C.C. [Uniform Commercial Code] Therefore, the first sale doctrine applies. It follows that the purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner."
I located a copy of the Bernstein v Dept of State ruling (http://www.eff.org/pub/Privacy/Crypto_export/Bern stein_case/Legal/960415.decision), which among other things states this:
"For the purposes of First Amendment analysis, this court finds that source code is speech."
The UTTERLY FRIGHTENING thing is that Kaplan held that DeCSS WAS speech! He said it was also functional, and that banning it was a content-neutral regulation that was narrowly tailored to advancing an important governement interest. That is he applied the intermediate scrutiny test, citing US v O'Brian that the governement can ban burning draft cards.
He ignored without comment the fact that Congress explicitly stated that the DMCA did not "diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products. " [1201(c)(4)].
He then put elipses (!!!) over "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; " when he quoted 1203(b)(1)'s empowerment of judicial injunctions. [p83]
Once again. Kaplan admits DeCSS is 'protected under the 1st amendment' !!!! In his own words:
"As computer code--whether source or object--is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated. In that sense, computer code is covered or, as sometimes is said, 'protected' by the First Amendment." [p51]
"It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine." [p50]
So my question, primarily for Martin, is how much did you really gain from that list? Was the Openlaw/DVD forum really of meaningful help to your efforts, or, at least in the context of providing specific help to the trial lawyers, was it a waste of time for those who participated?
As a non-lawyer who spent A LOT of time participating in the Openlaw list, I must second Jim's question: Did we help you?
Kaplan, given his prior connection to Time Warner, was surely a lost cause from the outset, so I'm not concerned about the result at this stage. But the coming appeal to the 2nd Circuit will obviously be very important.
To follow up Jim's question, I have another for Marty and/or Robin: What actions could we take that would most positively impact the future activity in this case.
This will certainly not be the last legal case where the open source community's interests are challenged: What can the community do proactivlely to become more effective at influencing judicial and/or political outcomes?
Judge Kaplan has been on the bench since late 1994. It is questionable whether the lawyer at Kaplan's former firm who gave Time Warner advice on DVD antitrust matters did so while Kaplan practiced there, and in any event there is no antitrust issue in the DeCSS litigation.
The fact that there was overlap has been definitively established, and is not disputed by Kaplan. Why are you arguing this?
First, regardless of whether "antitrust" is an issue, it's still way to close to home. Read the case cited in the original quote (Panama v. American Tobacco).
Second, of course antitrust is an issue. The DVD-CCA is a trust weilding the market power of all major movie studios and is attempting to extend the copyright monopoly beyond it's statutory bounds to control the DVD player market.
The idea that Kaplan would throw this case simply because his partner possibly gave some advice to one of the parties on fundamentally unrelated questions six years ago is not only absurd but is also gratuitously insulting to Judge Kaplan.
The law says that a judge has a duty to proactively self-recuse if any reasonable person could believe that a conflict of interest exists. The law specifically prohibits judges from serving when a former partner was involved in a matter before them.
In the tobacco case above, the judge was an officer in an association that submitted an amicus brief in a different tobacco case. The judge took no part in the actual writing of the brief other than being an officer. The appeals court ruled this was grounds for recusal.
Nope. A shrinkwrap license has never been tested in a serious court case.
They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.
Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]
While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:
Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]
Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.
The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.
The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.
There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.
Here's an article at SecruityPortal that looked at the same bugtraq data and came to the conclusion that Linux had superior security to NT and showed fewer total advisories and a fewer hacker recess days per advisory.
It seems obvious that ABC is full of crap and has fabricated their results by deliberately misrepresenting factual data.
Now why would ABC (A Bunch of Crap) News do such a thing?
(1) [First Sale] Your first sentence is correct - your second sentence is what YOU think it should be. But it's not and go whine to congress.
No, the principle of first sale is explicitly endorsed by Congress in 17 U.S.C. 109, and a whole line of caselaw. Most recently, the Supreme Court used it in Quality King v L'Anze (1998) to allow importing of copyrighted works over the objection of the copyright holder.
Specifically section 109 includes 109(c): "Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."
Note that this is an affirmative grant and that only the exclusive rights of 106(5) are notwithstanding. Congress did not add the right of access control to 106, and there is nothing you can point to that states they intended to.
Therefore, my interpretation is the proper one given the accepted jurisprudence for resolving conflict of laws.
2) [Reverse Engineering] You admit that DeCSS qualifies for RE and then basically say "but it's still copyright infringement". 1201(f)(2) Allows the creaton of and (f)(3) allows the distribution of descramblers as long as they are not "infringing", so you allude to correct law. However the copying done by DeCSS is performed on a copy that was purchased. Fair use is very easy to prove under these circumstaces. See the Betamax case and its progeny.
3) Too bad copying entire movies is not even remotely "fair use" The HOLDING in Sony v. Universal refutes your position.
You must learn how to read law. I note that you quote neither law nor cases to support any of your positions. Silly you.
4) There is NOTHING in free speech which gives license to violate copyrights.
In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) the Supreme Court refered to "the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use".
So indeed, there are two such principles. You can see also the decisions in Feist, Acuff-Rose, & Betamax for a better grounding in these affirmative defenses. Particularly, read footnote 13 in the Betamax case.
5) This case has nothing to do with antitrust or misuse of copyright and you'll find that neither of those lame defenses was even attempted, even by this lame defense team.
Garbus is one of the leading Consitutional Lawyers of our time. Perhaps you've heard of the Pentagon Papers? Perhaps not.
In an interview in Feed in May, Martin Garbus answered the following question:
FEED: Is there a case from your past that this most resembles, or does it seem very different because of all the technological issues?
GARBUS: [...] Can the motion-picture industry control distribution from the very beginning to the very end? Maybe the only platforms that can play DVD are those that pay the licensing fees. Or can you have other systems? Is that a violation of antitrust? Years ago, they made the motion-picture studios give up their control over theaters because they found it was a violation of antitrust. There are similar issues here.
He's refering to the case US v. Paramount where the studios attempted to justify block-licencing of copyrights, but lost.
Antitrust consideratons occur in no less than three ways in this case to lead to misuse of copyright: (1) Collusion - the studios collectively use the DVD-CCA licence to strengthen their negotiating position and control the player market (2) Tying - the right of access is sold separately from the copy itself. The studios use their collective "market power" to "force" "unwanted" licenced players on people. (3) Restraint of Competition - The DVD-CCA licence has restrictive terms that force anticompetitive terms on would-be player manufacturers.
If you care to continue the discussion, please subscribe to the dvd-discuss list at Openlaw.
Fact: DeCSS circumvents CSS Fact: That is, currently (like it or not), illegal. Fact: The judge has no choice but to do easy math: 1+1=Defendents lose.
I'm tired of all the people who seem to take this for granted. If you read the statue you'll see several things that to me make it clear that DeCSS does NOT violate the statue:
(1) "Circumvention" is required for a violation, and this is defined as access without the authority of the copyright owner. The First Sale doctrine should apply and say that the copyright owner volunatarily parts with his rights of control as soon as he takes his just reward in the marketplace.
(2) The DMCA has an exception for reverse engineering. DeCSS clearly allows interoperability and meets this exception.
(3) The law explicitly says that "fair use" is not affected see 1201(c)(1). Under the Sony Betamax decision, DeCSS would qualify.
(4) DeCSS, as a computer program, is protected expression under the statue. Computer programs are 'literary works' under well established copyright laws. The DMCA explicitly exempts speech from it's scope in 1201(c)(4). Further it explicitly bans prior restraints from judicial authority in 1203(b)(1)
(5) The tying of DVD copyrights to "licenced" players violates antitrust laws and constitutes "misuse of copyright", both of which are affirmative defenses in copyright cases.
All of these are based purely on statutory arguements and existing caselaw.
I posted this before, but it obviously didn't penetrate into some people's skulls.
people are downloading X-Men today (no DVDs exist, as I recall), in pretty good quality
If you or anybody can actually prove this, it would be very helpful to the defense.
If you know of a DivX that is being "traded" out there that is definitely not available on DVD, then please email me and I will get that information to the defense.
The judge has pointed out that the defense cannot ask the plaintiffs to prove DeCSS caused DivX piracy if they cannot prove it did not. This would help prove it did not.
Basically he says that antitrust is not an issue in the trial and so his former partner's advising of Time Warner on DVD antitrust issues has no relevance to the proceeding. The fact that his firm represented Time Warner and/or Warner Brothers is not alone sufficient to sustain the need for recusal and any request based on this is not timely. (You can't hold onto recusal requests to see how you do first).
The personal bias against Garbus claim he dismisses as wildly exagerated and not timely. He also make the arguement that it has to be bias against the party, not the attourney. These arguements are based on the recusal statues.
He also reviews the major decisions he's made in an attempt to rationalize them and point out that several things have gone the defenses direction. He says the defendants have tried to exagerate the trial's scope larger than what it should have been and misused their discovery time and are upset because he set an agressive schedule and wouldn't relax it to accomodate their mistakes.
My take is that Kaplan is probably right about the personal bias against Garbus stuff, but that Kaplan doesn't realize or is in denial that antitrust is an issue. The defense clearly thinks it is, so it remains to be seen what happens if/when they launch into antitrust issues.
Unless I misunderstood here, Garbus didn't make his motion (admittedly accompanied by an affidavit) until just before the trial started. It is therefore untimely under the statute, giving Judge Kaplan far more leeway as to how to procedurally dispose of it.
Um, I think YOU didn't read the part about or good cause shall be shown for failure to file it within such time
Garbus did just that (for the Time Warner Connection). He learned of Kaplan's firm's representation of TW with respect to DVD antitrust just 48 hours before.
In fact, Kaplan admits this is timely in his ruling denying the motion to recuse. His arguement was basically that antitrust isn't an issue in the trial -- which is absolutely bogus.
I've been discussing the legalities of this case since it's inception at Openlaw. It's been a major topic from day 1. A search of the Openlaw mailing list archives for "antitrust" retrieves 397 posts.
In fact, I think Garbus was quoted in a magazine as talking about US v. Paramount
Judge Kaplan, that's who. Here's his written statement denying the motion.
It seems that Kaplan has decided that antitrust is not an issue in the trial. Of course he would think this, since his firm was professionally responsible for preventing it from becoming an issue.
Kaplan violated Federal law by hearing his own recusal. Specifically he violated 28 USC 144.
The foundation for a claim of bias is provided by 28 USC 455 especially (b)(2) and (a).
The procedure for handling this is provided by 28 USC 144: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Basically, Kaplan cannot just decide the motion on his own bias. He MUST appoint another judge to hear it. He didn't. He is also not allowed to proceed. This trial is a sham!!
I'm astounded that you think his firm's advising Time Warner on an issue that is specifically at play in this case doesn't bother you. Such a situation should be sufficient to demonstrate bias for several reasons:
(1) Kaplan would have to repudiate the work of his former partners to accept the defenses arguement.
(2) A prior business relationship between him and Time Warner exists -- he has profited (as a partner) from his firms cozy relationship with Time Warner, and thereby he will naturally have pre-judged their case favorably.
(3) Kaplan would be bound by the attourney-client priviledge with Time-Warner, since he would have had access to their priviledged documents while at their firm. Kaplan chastised Garbus for this very point when the MPAA tried to remove Garbus, even though Garbus's firm didn't actually represent Time Warner, just their business partner. Kaplan actually endorsed post-trial disciplinary action against Garbus. What a hypocrit.
It's just basically absurd to think that a judge can be impartial when he has profited from his firm's providing legal advice on the specific issues that he now has to judge. Come on. Federal law is very clear on this and Kaplan is just totally ignoring it.
Most will (probably) also agree that DeCSS violates this law.
I'm tired of all the people who seem to take this for granted. If you read the statue you'll see several things that to me make it clear that DeCSS does NOT violate the statue:
(1) "Circumvention" is required for a violation, and this is defined as access without the authority of the copyright owner. The First Sale doctrine should apply and say that the copyright owner volunatarily parts with his rights of control as soon as he takes his just reward in the marketplace.
(2) The DMCA has an exception for reverse engineering. DeCSS clearly allows interoperability and meets this exception.
(3) The law explicitly says that "fair use" is not affected see 1201(c)(1). Under the Sony Betamax decision, DeCSS would qualify.
(4) DeCSS, as a computer program, is protected expression under the statue. Computer programs are 'literary works' under well established copyright laws. The DMCA explicitly exempts speech from it's scope in 1201(c)(4). Further it explicitly bans prior restraints from judicial authority in 1203(b)(1)
(5) The tying of DVD copyrights to "licenced" players violates antitrust laws and constitutes "misuse of copyright", both of which are affirmative defenses in copyright cases.
All of these are based purely on statutory arguements and existing caselaw.
Actually, the more chaotic it gets the better, because it makes it more likely that an Appeals Court will overturn the case.
I've been following the case very closely for a long time and I've noted what I thought was a clear bias on Kaplan's part, and I am not alone. John Young of cryptome has attended many of the hearings and he says that it comes across even stronger in person. This bias is different from ruling against the defense -- it's a clear attempt to deny them due process.
Some of the things that Kaplan has done that stink of bias are: 1. Refusing to delay the preliminary injunction hearing and proceding by teleconference, thereby setting an extremely prepared plaintiff against an extremely unprepared defendant. 2. Refusing, during the PI hearing, to hear expert testimony from the defense 3. Moving the trial date forward from Dec to July in response to allegations of plaintiff stonewalling during discovery 4. Refusal to delay the trial in response to the defense's motion that the schedule gave plaintiffs an unfair advantage 5. Scheduling accelerated discovery and refusing to appoint a magistrate to oversee it, despite defense motions that these unfairly aided the MPAA. 6. General and repeated rudeness towards the defense at nearly every opportunity
Like hell it isn't "direct conflict of interest". Kaplan's old firm provided legal guidance on the antitrust issues associated with DVD's, which is an issue in this case. Kaplan would have to repudiate his former firm to rule with the defense.
The MPAA brought a motion to remove Garbus because his firm had represented Time Warner on a completely unrelated matter. While Garbus remained on, Kaplan recommended post-trial disciplinary action. What a hypocrit!
Federal law demands that judges recuse themselves if there is the slightest reason to suspect that they might be biased. For example, three of the judges in the Circuit Court will not hear the Microsoft case, presumably because they merely own stock in the company.
Umm, the MPAA has tried to enjoin 2600 from linking to sites that contain DeCSS. Judge Kaplan will rule on this pretty soon I suspect. (A matter of weeks).
Openlaw filed an amicus brief on the MPAA's motion to enjoin hyperlinks. Some of the issues are common, some won't have the DMCA's draconian features to help them.
If the MPAA loses their motion, the RIAA will almost certainly lose theirs. The contributory claim is weak, and the direct copyright claim is frivioulous.
In Ticketmaster v Tickets.com the Federal District Court wrote: "Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. "
The judge also rejected Ticketmasters claims that merely visiting internal pages of a website can constitute creation of a contract.
Slashdot Mirror
xrn is the X-windows front end to NNTP news.
I don't know when it was created, but xrn has been around a while. It's on version 9.02 by now.
I guess it's not really a "relational" database, though, but it certainly is a 3-tier database with X-windows front end.
Article about personal jurisdiction on the internet. Pretty balanced.
I have copyrighted works under protected with PGP. I did not concent to the TPM I use being circumvented. Bruce's description of this vulnerability is clearly a circumvention technology that will be used to pirate my work and is thereby illegal under the DMCA.
I'm going to file a lawsuit against Bruce and Slashdot and anyone who links to Slashdot and anyone who reads the article and anyone who points at or otherwise refers to a person who reads the article. In fact, Bruce himself is circumvention technology, so I'm suing his parents, too, along with the major airlines, both of which have distributed Bruce.
The 2nd Circuit already ruled on the defense's appeal of Kaplan's denial of recusal. The appeal was denied. IANAL, so I don't know whether the defense gets any other chances, but I think it is unlikely. However, the 2nd Circuit might be empowered to conclude that Kaplan's decisions were so bad and contradictory that the defense deserves a new trial with a different judge.
I believe that you are refering to the defence's attempt to get a "stay", which means that the Appeals court would have stopped the proceeding completely. The fact that the 2nd Circuit didn't choose to do this doesn't really imply a whole lot, and an appeal is still alive. (I could be wrong, IANAL).
I think a stay would have been a pretty surprising thing. If you read what was said in the Panama v. Am. Tabacco, they said that fact pattern was a "close" call, but that recusal was warrented. This issues here are similar.
If/when the 2nd Circuit reviews Kaplan's denial of recusal, I suggest that we submit a brief/petition urging the Appeals court to find that recusal was warrented. If recusal was wrongly denied, all of Kaplan's opinions, decisions, and orders will be vacated. The standard for recusal under 28 USC 455 is:
Note that the standard requires only that "the trial judge's impartiality could reasonably be questioned", not that they must be proven. It is a "significan doubt" question.
As a matter of precedent, see the discussion of Republic of Panama v. American Tobacco Company, Inc. No. 99-30685 (5th Cir. 7/20/2000) in a post I made on openlaw. In that case a judge whose trial association submitted a brief on a "tobacco matter" in an unrelated case should have recused himself even though he did not take part in writing the brief.
Given these standards, do any of the reaonable people out there have "significant doubt" as to the judge's lack of impartiality?
Actually, I do own the content, if I recall what I've read on copyright law correctly. The MPAA has been saying that I don't, but I've paid them money for a copy of a copyrighted work. I OWN that copy, but I cannot create additional copies, except as allowed by fair use legislation.
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (C.D. Utah 1997)
"This Court holds that transactions making up the distribution chain from Novell through NTC to the end-user are "sales" governed by the U.C.C. [Uniform Commercial Code] Therefore, the first sale doctrine applies. It follows that the purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner."
I located a copy of the Bernstein v Dept of State ruling (http://www.eff.org/pub/Privacy/Crypto_export/Bern stein_case/Legal/960415.decision), which among other things states this:
"For the purposes of First Amendment analysis, this court finds that source code is speech."
The UTTERLY FRIGHTENING thing is that Kaplan held that DeCSS WAS speech! He said it was also functional, and that banning it was a content-neutral regulation that was narrowly tailored to advancing an important governement interest. That is he applied the intermediate scrutiny test, citing US v O'Brian that the governement can ban burning draft cards.
He ignored without comment the fact that Congress explicitly stated that the DMCA did not "diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products. " [1201(c)(4)].
He then put elipses (!!!) over "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; " when he quoted 1203(b)(1)'s empowerment of judicial injunctions. [p83]
Once again. Kaplan admits DeCSS is 'protected under the 1st amendment' !!!! In his own words:
"As computer code--whether source or object--is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated. In that sense, computer code is covered or, as sometimes is said, 'protected' by the First Amendment." [p51]
"It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine." [p50]
So my question, primarily for Martin, is how much did you really gain from that list? Was the Openlaw/DVD forum really of meaningful help to your efforts, or, at least in the context of providing specific help to the trial lawyers, was it a waste of time for those who participated?
As a non-lawyer who spent A LOT of time participating in the Openlaw list, I must second Jim's question: Did we help you?
Kaplan, given his prior connection to Time Warner, was surely a lost cause from the outset, so I'm not concerned about the result at this stage. But the coming appeal to the 2nd Circuit will obviously be very important.
To follow up Jim's question, I have another for Marty and/or Robin: What actions could we take that would most positively impact the future activity in this case.
This will certainly not be the last legal case where the open source community's interests are challenged: What can the community do proactivlely to become more effective at influencing judicial and/or political outcomes?
Judge Kaplan has been on the bench since late 1994. It is questionable whether the lawyer at Kaplan's former firm who gave Time Warner advice on DVD antitrust matters did so while Kaplan practiced there, and in any event there is no antitrust issue in the DeCSS litigation.
The fact that there was overlap has been definitively established, and is not disputed by Kaplan. Why are you arguing this?
First, regardless of whether "antitrust" is an issue, it's still way to close to home. Read the case cited in the original quote (Panama v. American Tobacco).
Second, of course antitrust is an issue. The DVD-CCA is a trust weilding the market power of all major movie studios and is attempting to extend the copyright monopoly beyond it's statutory bounds to control the DVD player market.
The idea that Kaplan would throw this case simply because his partner possibly gave some advice to one of the parties on fundamentally unrelated questions six years ago is not only absurd but is also gratuitously insulting to Judge Kaplan.
The law says that a judge has a duty to proactively self-recuse if any reasonable person could believe that a conflict of interest exists. The law specifically prohibits judges from serving when a former partner was involved in a matter before them.
In the tobacco case above, the judge was an officer in an association that submitted an amicus brief in a different tobacco case. The judge took no part in the actual writing of the brief other than being an officer. The appeals court ruled this was grounds for recusal.
Nope. A shrinkwrap license has never been tested in a serious court case.
They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.
Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]
While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:
Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]
Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.
The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.
The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.
There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.
Here's an article at SecruityPortal that looked at the same bugtraq data and came to the conclusion that Linux had superior security to NT and showed fewer total advisories and a fewer hacker recess days per advisory.
It seems obvious that ABC is full of crap and has fabricated their results by deliberately misrepresenting factual data.
Now why would ABC (A Bunch of Crap) News do such a thing?
If it is decided that mere source code is illegal, ...
... then here's to crime!
Does anybody really think that we're willing as a country to enforce a ban on DeCSS?
No, the principle of first sale is explicitly endorsed by Congress in 17 U.S.C. 109, and a whole line of caselaw. Most recently, the Supreme Court used it in Quality King v L'Anze (1998) to allow importing of copyrighted works over the objection of the copyright holder.
Specifically section 109 includes 109(c): "Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."
Note that this is an affirmative grant and that only the exclusive rights of 106(5) are notwithstanding. Congress did not add the right of access control to 106, and there is nothing you can point to that states they intended to.
Therefore, my interpretation is the proper one given the accepted jurisprudence for resolving conflict of laws.
2) [Reverse Engineering] You admit that DeCSS qualifies for RE and then basically say "but it's still copyright infringement". 1201(f)(2) Allows the creaton of and (f)(3) allows the distribution of descramblers as long as they are not "infringing", so you allude to correct law. However the copying done by DeCSS is performed on a copy that was purchased. Fair use is very easy to prove under these circumstaces. See the Betamax case and its progeny.
3) Too bad copying entire movies is not even remotely "fair use" The HOLDING in Sony v. Universal refutes your position.
You must learn how to read law.
I note that you quote neither law nor cases to support any of your positions. Silly you.
4) There is NOTHING in free speech which gives license to violate copyrights.
In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) the Supreme Court refered to "the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use".
So indeed, there are two such principles. You can see also the decisions in Feist, Acuff-Rose, & Betamax for a better grounding in these affirmative defenses. Particularly, read footnote 13 in the Betamax case.
5) This case has nothing to do with antitrust or misuse of copyright and you'll find that neither of those lame defenses was even attempted, even by this lame defense team.
Garbus is one of the leading Consitutional Lawyers of our time. Perhaps you've heard of the Pentagon Papers? Perhaps not.
In an interview in Feed in May, Martin Garbus answered the following question:
He's refering to the case US v. Paramount where the studios attempted to justify block-licencing of copyrights, but lost.
Antitrust consideratons occur in no less than three ways in this case to lead to misuse of copyright:
(1) Collusion - the studios collectively use the DVD-CCA licence to strengthen their negotiating position and control the player market
(2) Tying - the right of access is sold separately from the copy itself. The studios use their collective "market power" to "force" "unwanted" licenced players on people.
(3) Restraint of Competition - The DVD-CCA licence has restrictive terms that force anticompetitive terms on would-be player manufacturers.
If you care to continue the discussion, please subscribe to the dvd-discuss list at Openlaw.
Fact: DeCSS circumvents CSS
Fact: That is, currently (like it or not), illegal.
Fact: The judge has no choice but to do easy math: 1+1=Defendents lose.
I'm tired of all the people who seem to take this for granted. If you read the statue you'll see several things that to me make it clear that DeCSS does NOT violate the statue:
(1) "Circumvention" is required for a violation, and this is defined as access without the authority of the copyright owner. The First Sale doctrine should apply and say that the copyright owner volunatarily parts with his rights of control as soon as he takes his just reward in the marketplace.
(2) The DMCA has an exception for reverse engineering. DeCSS clearly allows interoperability and meets this exception.
(3) The law explicitly says that "fair use" is not affected see 1201(c)(1). Under the Sony Betamax decision, DeCSS would qualify.
(4) DeCSS, as a computer program, is protected expression under the statue. Computer programs are 'literary works' under well established copyright laws. The DMCA explicitly exempts speech from it's scope in 1201(c)(4). Further it explicitly bans prior restraints from judicial authority in 1203(b)(1)
(5) The tying of DVD copyrights to "licenced" players violates antitrust laws and constitutes "misuse of copyright", both of which are affirmative defenses in copyright cases.
All of these are based purely on statutory arguements and existing caselaw.
I posted this before, but it obviously didn't penetrate into some people's skulls.
people are downloading X-Men today (no DVDs exist, as I recall), in pretty good quality
If you or anybody can actually prove this, it would be very helpful to the defense.
If you know of a DivX that is being "traded" out there that is definitely not available on DVD, then please email me and I will get that information to the defense.
The judge has pointed out that the defense cannot ask the plaintiffs to prove DeCSS caused DivX piracy if they cannot prove it did not. This would help prove it did not.
Basically he says that antitrust is not an issue in the trial and so his former partner's advising of Time Warner on DVD antitrust issues has no relevance to the proceeding. The fact that his firm represented Time Warner and/or Warner Brothers is not alone sufficient to sustain the need for recusal and any request based on this is not timely. (You can't hold onto recusal requests to see how you do first).
The personal bias against Garbus claim he dismisses as wildly exagerated and not timely. He also make the arguement that it has to be bias against the party, not the attourney. These arguements are based on the recusal statues.
He also reviews the major decisions he's made in an attempt to rationalize them and point out that several things have gone the defenses direction. He says the defendants have tried to exagerate the trial's scope larger than what it should have been and misused their discovery time and are upset because he set an agressive schedule and wouldn't relax it to accomodate their mistakes.
My take is that Kaplan is probably right about the personal bias against Garbus stuff, but that Kaplan doesn't realize or is in denial that antitrust is an issue. The defense clearly thinks it is, so it remains to be seen what happens if/when they launch into antitrust issues.
Unless I misunderstood here, Garbus didn't make his motion (admittedly accompanied by an affidavit) until just before the trial started. It is therefore untimely under the statute, giving Judge Kaplan far more leeway as to how to procedurally dispose of it.
Um, I think YOU didn't read the part about or good cause shall be shown for failure to file it within such time
Garbus did just that (for the Time Warner Connection). He learned of Kaplan's firm's representation of TW with respect to DVD antitrust just 48 hours before.
In fact, Kaplan admits this is timely in his ruling denying the motion to recuse. His arguement was basically that antitrust isn't an issue in the trial -- which is absolutely bogus.
I've been discussing the legalities of this case since it's inception at Openlaw. It's been a major topic from day 1. A search of the Openlaw mailing list archives for "antitrust" retrieves 397 posts.
In fact, I think Garbus was quoted in a magazine as talking about US v. Paramount
Judge Kaplan, that's who. Here's his written statement denying the motion.
It seems that Kaplan has decided that antitrust is not an issue in the trial. Of course he would think this, since his firm was professionally responsible for preventing it from becoming an issue.
Kaplan violated Federal law by hearing his own recusal. Specifically he violated 28 USC 144.
The foundation for a claim of bias is provided by 28 USC 455 especially (b)(2) and (a).
The procedure for handling this is provided by 28 USC 144:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Basically, Kaplan cannot just decide the motion on his own bias. He MUST appoint another judge to hear it. He didn't. He is also not allowed to proceed. This trial is a sham!!
I'm astounded that you think his firm's advising Time Warner on an issue that is specifically at play in this case doesn't bother you. Such a situation should be sufficient to demonstrate bias for several reasons:
(1) Kaplan would have to repudiate the work of his former partners to accept the defenses arguement.
(2) A prior business relationship between him and Time Warner exists -- he has profited (as a partner) from his firms cozy relationship with Time Warner, and thereby he will naturally have pre-judged their case favorably.
(3) Kaplan would be bound by the attourney-client priviledge with Time-Warner, since he would have had access to their priviledged documents while at their firm. Kaplan chastised Garbus for this very point when the MPAA tried to remove Garbus, even though Garbus's firm didn't actually represent Time Warner, just their business partner. Kaplan actually endorsed post-trial disciplinary action against Garbus. What a hypocrit.
It's just basically absurd to think that a judge can be impartial when he has profited from his firm's providing legal advice on the specific issues that he now has to judge. Come on. Federal law is very clear on this and Kaplan is just totally ignoring it.
Most will (probably) also agree that DeCSS violates this law.
I'm tired of all the people who seem to take this for granted. If you read the statue you'll see several things that to me make it clear that DeCSS does NOT violate the statue:
(1) "Circumvention" is required for a violation, and this is defined as access without the authority of the copyright owner. The First Sale doctrine should apply and say that the copyright owner volunatarily parts with his rights of control as soon as he takes his just reward in the marketplace.
(2) The DMCA has an exception for reverse engineering. DeCSS clearly allows interoperability and meets this exception.
(3) The law explicitly says that "fair use" is not affected see 1201(c)(1). Under the Sony Betamax decision, DeCSS would qualify.
(4) DeCSS, as a computer program, is protected expression under the statue. Computer programs are 'literary works' under well established copyright laws. The DMCA explicitly exempts speech from it's scope in 1201(c)(4). Further it explicitly bans prior restraints from judicial authority in 1203(b)(1)
(5) The tying of DVD copyrights to "licenced" players violates antitrust laws and constitutes "misuse of copyright", both of which are affirmative defenses in copyright cases.
All of these are based purely on statutory arguements and existing caselaw.
Actually, the more chaotic it gets the better, because it makes it more likely that an Appeals Court will overturn the case.
I've been following the case very closely for a long time and I've noted what I thought was a clear bias on Kaplan's part, and I am not alone. John Young of cryptome has attended many of the hearings and he says that it comes across even stronger in person. This bias is different from ruling against the defense -- it's a clear attempt to deny them due process.
Some of the things that Kaplan has done that stink of bias are:
1. Refusing to delay the preliminary injunction hearing and proceding by teleconference, thereby setting an extremely prepared plaintiff against an extremely unprepared defendant.
2. Refusing, during the PI hearing, to hear expert testimony from the defense
3. Moving the trial date forward from Dec to July in response to allegations of plaintiff stonewalling during discovery
4. Refusal to delay the trial in response to the defense's motion that the schedule gave plaintiffs an unfair advantage
5. Scheduling accelerated discovery and refusing to appoint a magistrate to oversee it, despite defense motions that these unfairly aided the MPAA.
6. General and repeated rudeness towards the defense at nearly every opportunity
Thanks to Eddan Katz off the EFF for forwarding these to the dvd-discuss list at Openlaw:
Martin Garbus affidavit supporting the motion for recusal/disqualification:
Memorandum of Law supporting the motion for recusal/disqualification:
Like hell it isn't "direct conflict of interest". Kaplan's old firm provided legal guidance on the antitrust issues associated with DVD's, which is an issue in this case. Kaplan would have to repudiate his former firm to rule with the defense.
The MPAA brought a motion to remove Garbus because his firm had represented Time Warner on a completely unrelated matter. While Garbus remained on, Kaplan recommended post-trial disciplinary action. What a hypocrit!
Federal law demands that judges recuse themselves if there is the slightest reason to suspect that they might be biased. For example, three of the judges in the Circuit Court will not hear the Microsoft case, presumably because they merely own stock in the company.
Umm, the MPAA has tried to enjoin 2600 from linking to sites that contain DeCSS. Judge Kaplan will rule on this pretty soon I suspect. (A matter of weeks).
Openlaw filed an amicus brief on the MPAA's motion to enjoin hyperlinks. Some of the issues are common, some won't have the DMCA's draconian features to help them.
If the MPAA loses their motion, the RIAA will almost certainly lose theirs. The contributory claim is weak, and the direct copyright claim is frivioulous.
In Ticketmaster v Tickets.com the Federal District Court wrote:
"Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. "
The judge also rejected Ticketmasters claims that merely visiting internal pages of a website can constitute creation of a contract.