If you look at it, you'll see that they have filled in the "on the wire" box, which appears to be an "actual" not a "schedule", because it's only filled in for past milestones and the dates appear (at first glance) to match the actual release dates.
If mozilla doesn't want people to shoot off "mozilla M17 out today" then they need to keep this page accurate and current (or get rid of it).
On the other hand, the M17 open bug and engineering task list is here.
It lists 1073 bugs and tasks. So is M17 coming out later today or is it going to be 6 weeks away? This gives me the impression that mozilla.org is confused and doesn't have it's shit together on the communication side.
Here's an interesting exchange between Hernstadt and Schumann.
Q. Does DeCSS permit a consumer who has purchased a DVD to fast-forward through sections of a DVD that the manufacturer has prevented from being fast-forwarded? A. DeCSS itself?
Q. That's my question. A. No.
Q. Does DeCSS enable someone to use with some other program, like a DVD player, to skip the region code? A. I think it is irrelevant to that problem.
Q. You think DeCSS is irrelevant to that problem? A. To the problem of evading region code?
Q. Yes. A. Yes.
Q. In a Declaration if there is a statement that says that DeCSS permits you to evade region coding, a region coding limitation, then that statement is incorrect? A. In my professional opinion, DeCSS is irrelevant to evading the region coding, in your terminology.
Q. Why is that? A. Because region coding is not part of the DeCSS specification.
Schumann probably means CSS specification there, but this is still bunk. Hernstadt posted about this dialog on the Openlaw mailing list. We confirmed his beleif that he basically caught Schumann spewing junk, so this'll give us a good chance to "impeach" their expert witness come trial time.
Of course DeCSS lets you evade region codes -- it doesn't pay any attention to it and will decrypt DVD's from all regions. Schumann was clearly trying to pull the wool over their eyes.
The lawyer Mr Garbus, keeps referring to "Linux BSD".
Mr Garbus actually is a complete layman about tech matters, although his associate Mr Hernstadt is much more informed. Garbus has posted a couple times to the Openlaw mailing list and it's very clear that he can barely type and that he isn't exactly sure what a mailing list is.
He is, on the other hand, an extremely competent lawyer. John Young, who has attended many of the hearing reports that he is exceedingly composed in front of the often hostile Judge Kaplan. In fact, his effectiveness is starting to score points. In the last hearing (on public access to the transcripts), Kaplan wasn't so hostile to our side. One of the points Garbus then made is that he needs public access because the issues are so technical.
Instead of bashing him as 'computer-illiterate', we need to understand that these things are not obvious and accept the burden to explain them. We're lucky that he is a good enough lawyer to have won us the right to read them at all -- believe me the MPAA brief from Proskaur Rose trying to close off the depositions was no small thing to defeat.
The Openlaw forum is in fairly regular communication with Hernstadt, so when they make errors, we just need to politely put them on a list and explain them so they don't make the same mistake twice.
Parts of it are marked confidential, see begining (lines 8-13 on page 4), so it looks like Mr Gold got his way.
Um, no. Gold wanted the whole thing marked confidential. The fact that you are reading it means Gold lost. They had a hearing and the judge sided with Garbus (except that journalists can't actually attend the depositions - they can only get the transcripts). Only personal information and things that are truly trade secrets will be redacted. Otherwise, 'prominent' people's depositions will be released to the public within 3 days, all others within 10 days. Anything released can be posted on the net.
Is the Xing player bought from a retailer? If so, the receipt from the retailer is a contract of sale. Xing is not a party to this contract and they cannot alter it by subsequent contract.
In all the cases recognizing shrinkwrap licences, the sale was direct from the software company. The theory is that it is "money now, terms in the box, contract begins when goods & terms are 'accepted'".
When there is a retailer in the way, this doesn't work, because the software company isn't a party to the contract of sale, so the shrinkwrap has to stand on it's own as a contract.
Title 17 of the US code, section 117 allows the owner of a copy to install it on one computer. The shrinkwrap basically authorizes you to do something that you already can legally do (ie it gives you nothing). All contracts depend on 'consideration', which means that each side gives up something in a quid-pro-quo. When the consumer gives up lots of rights in return for permission to do something they already can do under law, there is no consideration and the contract is invalid.
All this is my own, non-lawyer opinion, but I have been reading a lot about clickwrap contracts because of the DVD case (I've been heavily involved in Openlaw).
Oracle's licence includes a "no benchmarking" clause (which I found a sample of on the Oracle Technet site):
Customer shall not:... (e) disclose results of any benchmark tests of any Program to any third party without Oracle's prior written approval.
This is basically an attempt to leverage the copyright to force acceptance of a term that Congress and the First Amendmentment did not include among the limited exclusive rights given to the copyright owner.
Hon. Lewis A. Kaplan United States District Judge Daniel Patrick Moynihan United States Courthouse 500 Pearl Street, Room 1310 New York, New York 10007-1312
Re: Universal City Studios, Inc., et al v. Reimerdes, et al, 00-CIV-0277 Opposition to Motion for Protective Order
Dear Judge Kaplan,
This is submitted in opposition to plaintiffs' motion for a protective order, May 30, 2000.
My name is Bryan Taylor, and I am a member of the public who has followed the DVD litigation on the internet since its inception. I have followed nearly every legal filing, every news story, every judicial decision in this case since it began. I oppose the overreaching protective order now before you. This is yet another in a series of legal maneuvers brought solely to secure tactical advantage.
Any member of the public has a right to follow the details of litigation that may affect the boundary of free speech, fair use, and legitimate sharing of information for reverse engineering. This is an important case which will set an important precedent that will affect the public. The mere possibility of "big money" interests overprotecting their intellectual property rights at the expense of rights traditionally enjoyed by consumers, scientists, and programmers is one that I believe demands public scrutiny.
I have studied the extensive resources available from a variety of sources on the internet that are relevant to the DVD cases. These include mailing lists and their archives, court documents, online discussion forums, news sites, news site feedback forums, government cites, online databases of US and European statutory and case law, as well as the websites of the plaintiffs, defendants, and their respective law firms.
In my research, I have encountered many levels of discontent with the position of the MPAA, et. al., in this case. I have not, however encountered anyone who seriously advocated violence or other forms of criminal harm to the Plaintiffs. The emails submitted on behalf of the Plaintiffs represent a variety of opinions, a few of which clearly go beyond the range of acceptable discourse. However, considering that these emails appear to have been sent to a public point-of-contact email address (hotline@mpaa.org) which is advertised on the Plaintiff's website at http://www.mpaa.org/anti-piracy/contact/index.htm, and that most of them appear to be signed by their originators, common sense would seem to dictate that the few threats received are childish outbursts that don't represent actual intent to harm.
The handful of threatening emails, which like all the emails submitted, are dated in January of this year. In my observation, emotions have cooled somewhat in the following months. These isolated threats from half a year ago bear no relation to the effect that will be produced by allowing open access to the deposition and discovery material. I make this observation having tracked many similarly relevant documents that have become available over this same half year.
Based on my observations participating in Harvard's Openlaw/DVD project, the effect of preserving public access over the internet to the raw source or original materials is that intense scrutiny will be applied to the documents. As of 6/2/00, the mailing list program lists 171 Openlaw participants. These include a self selected group of lawyers, professors, students, programmers, scientists, and technology people and other interested members of the public. The diverse backgrounds and self-selected nature of our forum ensure a high degree of quality and rigor in the discussion.
Typically when a new document is posted somewhere on the internet it will come to the attention of someone in our forum who forwards the link to the rest of the list. Often a discussion will follow. If mistakes, inaccuracies, or misrepresentations are present, the diversity of the participants will likely lead to the truth being flushed out. This works on both sides of the argument.
In several cases, members of our group have contacted non-participant experts to settle questions. The range of knowledge accessible in such a way to our diverse group is immense. Openness and calm public examination foster truth seeking and truthfulness. This should benefit the parties, their attorneys, the Court, and Justice generally. The desire for public access to the material in question is not intended for any other purpose than to seek the truth.
For these reasons, I hope that you will deny the Plaintiffs motion to hide important deposition and discovery information from the public. If there are any situations that call for confidentially, I hope that you will treat them narrowly and restrict only the minimal content needed.
Sincerely,
Bryan Taylor
Re:The only thing to be done-NUKE THE MPAA
on
DeCSS Update
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· Score: 2
NUKE THE MPAA Send them all a mail to hotline@mpaa.org!
Don't do that. It's a childish waste of time and could end up backfiring.
If you want to participate constructively, I suggest you join Openlaw's mailing list. If you want want to rant and raive then I suggest you go to a WWF match.
But the OS (if you can call winders a OS) cds that come with most OEM systems say on the "for sale with a new pc only" now is selling those on ebay a violation of that clause? How binding is that clause? I agree that if it is binding etc. that it really sucks.
The Supreme Court rejected such notices in 1908. The case is BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339(1908).
I'm worried that what will happen is that the FTC will adopt some lame standard that allows sites to say "look, we're FTC compliant" when in fact they are dealing out all sorts of privacy violations.
While many of the libertarians on/. (including myself) may see the merit of the "code is free speech" defense, the fact is that it has little legal merit. The authors of viruses can be prosecuted because that code may present a real danger. Just as the courts have decided to impose limits on verbal expression (i.e. the overused fire in a theater example) that can present a public danger, they will place restrictions on the distribution of code. One of the questions that is raised is: is the *threat* of piracy a public hazard that justifies the restriction on expression.
Piracy has little to do with DeCSS. Even the MPAA cannot cite an example of it being used for this. This is a case about communicating ideas learned by examining copyrighted material. This does not present a "danger" - in fact, just the opposite, suppressing it is the far more dangerous path.
The burden on the government, before it upholds a content based ban on speech is called the "strict scrutiny" standard. To meet this the governement must show that it regulates to protect a compelling state interest (whose maginitude is at least as great as the right to free speech) and that it does so by the least restrictive means.
This "Least restrictive means" requirement is a razor sharper than Occum's. The US Supreme Court reaffirmed it as a hard-line requirement this week in US v. Playboy.
Quoting Garbus: Right now the MPAA has got an order from the court which makes it possible to stop the posting of the DeCSS. The MPAA has now made a motion to expand the injunction to include linking. What I'd like to know is, if links themselves are prohibited, can simply posting the text of the URL itself be prohibited as well? If we get to this extreme, I think we've gone way over the first amendment line.
The Openlaw DVD Forum is going to submit an amicus brief making exactly this point. We're currently at the 4th draft and are trying to finish up by this weekend.
Garbus and his associate Edward Hernstadt have been very supportive of our attempts to apply open source methods to crafting legal arguments. Both have even posted to our mailing list. Anyone who wishes to get involved should check it out. There is also a very good resources page there.
I checked the copyright office's web site for the list of things that couldn't be copyrighted. Included on that list was "mere variations of typographic ornamentation, lettering, or coloring." That's a pretty good description of what HTML does.
No it is NOT a good description of what HTML does. Consider a link: there's more to this than meets the eye!. The website refered to in an URL is an original contribution to the expressed idea within the the citation, as above linked article shows. The refered page is an outline for the Amicus Brief that Openlaw is writing in the NY DeCSS case to counter the MPAA's attempt to enjoin 2600's Mirror List. Our arguement is based on the fact that html is expressive and protected by the First Amendment.
Furthermore, don't confuse the map with the territory, so to speak. A command to tell a browser how to make text red is different from red text. Source code is speech because it expresses a method for making a computer produce a desired output. HTML meets this definition.
Remember, HTML is just a presentation "language". It's not what is copyrightable. What IS copyrightable, however, is the data that it marks up.
That's totally bunk. The choice of which tags go where is part of the copyrightable expression. The whole html file would be copyrighted as a 'literary work', which is how programs (in source or executable form) are considered under copyright law. HTML would almost certainly meet the (*extremely* broad) definition of a program in 17 USC 101, and would have copyright protection as a program.
However, it sounds very much like the original company created a 'work for hire', which means that the customer company owns the copyright. If not, all the person who posted would have to do is throw away the code, look at the output, and reverse engineer something that looks similar. Even if the result happened to be exactly the same, that wouldn't be a problem if it was independently created. This is the 'merger principle' which says ideas that can only be expressed in a few ways are copyable.
The prohibition contained in subparagraph (A) [anti-circumvention] shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title...
Your omission of the rest of the sentence makes this quote seem much stronger than it is. The "..." goes on to say: "as determined under subparagraph(C). "
The Librarian of Congress, under whom the Copyright Office operates, was given rulemaking powers in (C) to grant exeptions to (A). The legislative history of the DMCA shows that it was very important to Congress to preserve a way to allow fair access to allow fair use. The LOC rulemaking takes affect in Oct. and it will be absolutely critical to the subsequent interpretation of the law. I must disagree with prof. Lessig that the DMCA necessarily bans all cracking, even ones that lead to fair use. He points out that such an interpretation would run afoul of the First Amendment, but there is another interpretation that is much less far-reaching and is compatible with the law.
This interpretation is based on the fact that the law only bans circumvention of _access_ control measures. A limited defintion of "access" can distinguish "access control" from "use control". Accordingly, some of the members of the Openlaw DVD forum have submitted a reply comment urging the LOC to adopt such a limited definition.
This idea was first advanced by the original comment of the five leading Library Associations. We hope that the Copyright Office will treat these organizations with the enormous respect and credibility that they obviously deserve.
I've tried playing chess against the computer where I can see everything it is thinking. It still wins. It's the same reason why Linux is more secure than NT even though crackers can read our source code.
I sort of think of the open source movement as creating an "Anti-company" wereby we, the consumers, take back space previously the province of proprietary interests. We've come to the part where we've got to create our legal department.
I think there are several ways to do this. All rely on our community doing what it does best -- colaborating using the methods of open source.
One way to improve our "legal department" is to approach creation of legal documents as a plain old open source documentation project. This works for creating legal briefs, and it can even work for creating legislation. In states with direct ballot votes, this can be enough to get it into law. We must to some extent not be afraid to use technology and teamwork to push back the boundaries of the "guild".
In some cases, though, you are right, we need lawyers on our side doing full time "real" lawyer work. One way that I see to interest more lawyers to do pro bono work for us is to do pro bono work for them. Believe me, big law firms are wasting BIG BUCKS on IT "solutions". Perhaps we should target open source software towards law firms. Make it a goal to put free software operating systems on lawyers desks running free software applications that lawyers need. Technically, this isn't much of a challenge: basically, they need legal search engines, document management systems, and groupware. I think if more lawyers understand how our methods work and can touch and feel the benefits, we'll have created a lobbying effort better than one we could gotten by knocking on the front door.
I've been corresponding with Wendy Seltzer since the initial suggestion that we do this in the original proposal thread. Thanks to sholton for pointing us to openlaw and to ralphclark for efforts to bring this about.
I've also been in touch with Robin Gross from the EFF, who has indicated that she would like to participate in the forum. I hope that we can create a high quality combination of legal and technical input.
This step is just the start, I hope. I would like to encourage people to participate in this. I think it would be a good goal to file an 'amicus' brief to each of the DVD cases that is written using open source methods that represents the views of the open source community.
Here's some links that are especially useful for researching the legislative history of the DMCA. I believe these strongly contradict judge Kaplan's interpretations in his preliminary injunction opinio.
The Committee considered it particularly important to ensure that the concept of fair use remain firmly established in the law and that consumer electronics, telecommunications, computer, and other legitimate device manufacturers have the freedom to design new products without being subjected to the threat of litigation for making design decisions.
Sections 1201(a)(2) and (b)(1) make it illegal to manufacture, import, offer to the public, provide, or otherwise traffic in so-called `black boxes'--devices with no substantial non-infringing uses that are expressly intended to facilitate circumvention of technological measures for purposes of gaining access to or making a copy of a work. These provisions are not aimed at widely used staple articles of commerce, such as the consumer electronics, telecommunications, and computer products--including videocassette recorders, telecommunications switches, personal computers, and servers--used by businesses and consumers everyday for perfectly legitimate purposes.
Under section 1201(a)(1)(C), the Librarian of Congress must make certain determinations based on the recommendation of the Register of Copyrights, who must consult with the Assistant Secretary of Commerce for Communications and Information before making any such recommendations, which must be made on the record. As Chairman of the Committee on Commerce, I felt very strongly about ensuring that the Assistant Secretary would have a substantial and meaningful role in making fair use and related decisions, and that his or her views would be made a part of the record.... As the hearing record demonstrates, I and many of my colleagues are deeply troubled by the prospect that this legislation could be used to create a `pay-per-use' society. We rejected the Administration's original proposed legislation in large part because of our concern that it would have established a legal framework for copyright owners to exploit at the expense of ordinary information consumers. By insisting on a meaningful role for the Assistant Secretary and by ensuring that a court would have an opportunity to assess a full record, we believe we have established an appropriate environment in which the fair use interests of society at large can be properly addressed.
This article hits it right on the nose. The movie industry is leveraging CSS to create anti-competitive control and to inflate prices.
This all happened before. Everyone should take a moment and read U.S. V. PARAMOUNT PICTURES. Especially the first part and part (5) about block licencing.
In this case the Supreme Count found that the motion picture industry was engaing in anti-competitive business practices in violation of the Sherman Act. They overruled the claim that copyright protection justify their business practices. The practices were:
Then: A) Price Fixing - Using copyright licencing with strings attached to force theaters to raise prices B) Tying - Using copyright licencing to sell one product (movie A) contingent on another (movie B)
Now: A) Price Fixing - Using copyright licencing to inflate the price of DVD's using regional licencing B) Tying - Using copyright licencing to sell one product (movie A) contingent on another (licenced player).
Intentions of legislators (provided they had any or bothered to think about them) are interesting, but do not have much relevance. It has been known for the courts to try to gauge the Congress' intent while trying to sort out murky laws, but the letter of law as passed is much, much more important. In the case of DMCA, it talks about circumventing devices used to control access to the copyrighted material and that is the rub. It does not talk about copying, it talks about access. This is exactly why DeCSS falls under DMCA.
Legislative histrory is and should be used by judges to resolve ambiguity in the plain text of the legislation. You have it exactly right, though - "it talks about circumventing DEVICES". Code is not a device. However, you didn't tell the whole story about circumvention access: the access it talks about is access "without the authority of the copyright holder". Fair use and the explicit DVD copyright language "for home use only" both grant this authority.
Oh, I see. Do you, then, claim that there is no harm whatsoever to MPAA from DeCSS and we are just trying to put some money into their pocket while they are running away screaming "Get that weirdo away from me!!!!"? It's all just a little misunderstanding, right?
Yes, emphatically. The MPAA are engaing in moronic business behavior. The economic payoff to the from allowing linux based playback should be huge - home use for linux is ~ 1-2% (growing daily) and these are the most technically savy users who are most likely to have advanced devices like a DVD. I am not alone: the fool.com article trashed the MPAA from the INVESTOR'S perspective. Waging war on your customer base is bad business. The VCR generated enormous profits for the movie industry despite it's copyability, but the MPAA had to be dragged kicking and screaming to this payoff to.
To restate, you seem to think that DMCA is an OK law that was misinterpreted by a dumb judge. I think that DMCA is a terrible law and the judge just applied it. You are horrified at the result and think that it was misapplied -- I think that the problem is with the law, not with its misinterpretation.
The DMCA was designed to prohibit things like cable descrambler boxes and PCI cards that use special hardware to decrypt pay-per-view or subscription internet broadcasts. It does this effectively and in these cases no claim can be made that "I'm trying to watch MY movie in my home as I please".
I listed extensive citations to the actual text of the bill to show that as written it does not prohibit DeCSS. It's very odd that you ignore this and attack my supporting legislative history point on the grounds that it isn't textual. I further supported my arguement that neither the text nor the intent would ban DeCSS with a 1st amendment arguement that says that Congress would have no power to do this even if they wanted to (which they didn't). If you'd like to argue otherwise, please go back to my original post and tell me which numbered points you think are wrong.
IANAL, but most reasonable people seem to agree that under DMCA the judge's ruling is correct. I don't have an opinion on the judge's IQ, but it seems that the DMCA is the problem, not this particular judge.
I strongly disagree with this. The DMCA was designed to prohibit "black-boxes" (as several legislators refered to them). It is not supposed to apply to source code. Congress did not intend to gut fair use as is clear to anyone who reads the floor debates. There are specific textual provisions that:
1. Restrict DMCA from applying to "free speach... using... computer products" 1201(c)(4) [Judge Kaplan ignores this completely] 2. Recognize and protect fair use 1201(c)(1) [Judge Kaplan misrepresents Congress's intention] 3. Recognize reverse engineering as legitimate 1201(f) [Kaplan's analysis of this is absolutely moronic] 4. Restrict prohibitions on access circumvention tools only when "without the authority of the copyright owner" (DVD's grant "for home use only") 1201(a)(3)(b) 5. Grant the policymaking power to identify "noninfringing uses" of access circumvention to the "Librarian of Congress" not to judge Kaplan 1201(a)(1)(B,C) 6. Do not list software or source code in the list of technological means 1201(a)(2) [The law ban's devices and services, not code]
Furthermore, the Judge's analysis on the "balancing" between the copyright power and the 1st amendment is completely out of sync with Supreme Court precedent (and the plain text of the DMCA as noted above). 1. He fails to employ "strict scrutiny" concept when using granted powers to restrict fundamental rights 2. Kaplan's doesn't cite the copyright power itself (and notes this), but rather the "necessary and proper" clause. Outrageous. It is neither necessary nor proper to restrict the first amendment. 2. He fails to employ the "least restrictive means" test 3. He fails to employ the "void-for-vagueness" and "overbreadth" tests 4. He looks the other way at a "standardless licencing" arrangement for prior restraint 5. The "balancing" test has been rejected decisively by the court in favor of the Brandeiss test = incitement likely to bring about imminent lawless action 6. Congress cannot delegate prior restraint inducing licencing powers to non-accountable officials (like companies!) 7. U.S. V. PARAMOUNT PICTURES, INC. restrained the copyright power to disallow noncompetitive business practices such as movie price fixing and "block licencing" a form of "tying" one product's licencing to that of another
His preliminary injuction ruling is laced throughout with a confusion about encryption and copy-protection. His conclusions of harm to the MPAA are founded on the lie that DeCSS is a piracy tool. It's not - it's a playback tool that will actually EXPAND the market for DVD's.
Here's a Supreme Court citation that shows the limits of copyright protection regarding restraint of free trade. Oh, by the way, the case is entitled U.S. V. PARAMOUNT PICTURES, INC.
It basically found the motion picture studios used their copyrights to engage in price fixing for movie admissions and also illegal tying of one product to another when they did "block licencing", whereby a theater can't exhibit the popular flick unless they also take unpopular ones.
I got a reply email from Wendy Seltzer of the Berkman Center for Internet & Society at Harvard (which runs Openlaw). She expressed interest in the idea of putting the DeCSS cases into the Openlaw forum. She said she would spread the word around the Berkman Center team and respond back to me soon.
I also got a reply back from Stanton McCandlish of the EFF saying they were forwarding the suggestions to their legal staff.
The situations you refered to involve FOR PROFIT advice presented in a way that was found to be intentionally misleading.
I think your statements that there is something wrong with writing a brief or drafting legislation are way off mark. It is quite common for non-lawyers to submit such writings.
You cross the line only when you attempt to profit from giving legal advice.
Slashdot Mirror
I understand that M17 doesn't appear to be out yet, but blame mozilla.org not slashdot.
The milestone plan is maintained here
If you look at it, you'll see that they have filled in the "on the wire" box, which appears to be an "actual" not a "schedule", because it's only filled in for past milestones and the dates appear (at first glance) to match the actual release dates.
If mozilla doesn't want people to shoot off "mozilla M17 out today" then they need to keep this page accurate and current (or get rid of it).
On the other hand, the M17 open bug and engineering task list is here.
It lists 1073 bugs and tasks. So is M17 coming out later today or is it going to be 6 weeks away? This gives me the impression that mozilla.org is confused and doesn't have it's shit together on the communication side.
Here's an interesting exchange between Hernstadt and Schumann.
Q. Does DeCSS permit a consumer who has purchased a DVD to fast-forward through sections of a DVD that the manufacturer has prevented from being fast-forwarded?
A. DeCSS itself?
Q. That's my question.
A. No.
Q. Does DeCSS enable someone to use with some other program, like a DVD player, to skip the region code?
A. I think it is irrelevant to that problem.
Q. You think DeCSS is irrelevant to that problem?
A. To the problem of evading region code?
Q. Yes.
A. Yes.
Q. In a Declaration if there is a statement that says that DeCSS permits you to evade region coding, a region coding limitation, then that statement is incorrect?
A. In my professional opinion, DeCSS is irrelevant to evading the region coding, in your terminology.
Q. Why is that?
A. Because region coding is not part of the DeCSS specification.
Schumann probably means CSS specification there, but this is still bunk. Hernstadt posted about this dialog on the Openlaw mailing list. We confirmed his beleif that he basically caught Schumann spewing junk, so this'll give us a good chance to "impeach" their expert witness come trial time.
Of course DeCSS lets you evade region codes -- it doesn't pay any attention to it and will decrypt DVD's from all regions. Schumann was clearly trying to pull the wool over their eyes.
The lawyer Mr Garbus, keeps referring to "Linux BSD".
Mr Garbus actually is a complete layman about tech matters, although his associate Mr Hernstadt is much more informed. Garbus has posted a couple times to the Openlaw mailing list and it's very clear that he can barely type and that he isn't exactly sure what a mailing list is.
He is, on the other hand, an extremely competent lawyer. John Young, who has attended many of the hearing reports that he is exceedingly composed in front of the often hostile Judge Kaplan. In fact, his effectiveness is starting to score points. In the last hearing (on public access to the transcripts), Kaplan wasn't so hostile to our side. One of the points Garbus then made is that he needs public access because the issues are so technical.
Instead of bashing him as 'computer-illiterate', we need to understand that these things are not obvious and accept the burden to explain them. We're lucky that he is a good enough lawyer to have won us the right to read them at all -- believe me the MPAA brief from Proskaur Rose trying to close off the depositions was no small thing to defeat.
The Openlaw forum is in fairly regular communication with Hernstadt, so when they make errors, we just need to politely put them on a list and explain them so they don't make the same mistake twice.
Parts of it are marked confidential, see begining (lines 8-13 on page 4), so it looks like Mr Gold got his way.
Um, no. Gold wanted the whole thing marked confidential. The fact that you are reading it means Gold lost. They had a hearing and the judge sided with Garbus (except that journalists can't actually attend the depositions - they can only get the transcripts). Only personal information and things that are truly trade secrets will be redacted. Otherwise, 'prominent' people's depositions will be released to the public within 3 days, all others within 10 days. Anything released can be posted on the net.
1. The Product is licensed, not sold.
"[T]o call the sale a license to use is a mere play upon words."
Bauer & Cie. v. O'Donnell, 229 U.S. 1 (US Supreme Court 1913)
Is the Xing player bought from a retailer? If so, the receipt from the retailer is a contract of sale. Xing is not a party to this contract and they cannot alter it by subsequent contract.
In all the cases recognizing shrinkwrap licences, the sale was direct from the software company. The theory is that it is "money now, terms in the box, contract begins when goods & terms are 'accepted'".
When there is a retailer in the way, this doesn't work, because the software company isn't a party to the contract of sale, so the shrinkwrap has to stand on it's own as a contract.
Title 17 of the US code, section 117 allows the owner of a copy to install it on one computer. The shrinkwrap basically authorizes you to do something that you already can legally do (ie it gives you nothing). All contracts depend on 'consideration', which means that each side gives up something in a quid-pro-quo. When the consumer gives up lots of rights in return for permission to do something they already can do under law, there is no consideration and the contract is invalid.
All this is my own, non-lawyer opinion, but I have been reading a lot about clickwrap contracts because of the DVD case (I've been heavily involved in Openlaw).
Oracle's licence includes a "no benchmarking" clause (which I found a sample of on the Oracle Technet site):
... (e) disclose results of any benchmark tests of any Program to any third party without Oracle's prior written approval.
Customer shall not:
This is basically an attempt to leverage the copyright to force acceptance of a term that Congress and the First Amendmentment did not include among the limited exclusive rights given to the copyright owner.
1 June 2000
, and that most of them appear to be signed by their originators, common sense would seem to dictate that the few threats received are childish outbursts that don't represent actual intent to harm.
Hon. Lewis A. Kaplan
United States District Judge
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street, Room 1310
New York, New York 10007-1312
Re: Universal City Studios, Inc., et al v. Reimerdes, et al, 00-CIV-0277
Opposition to Motion for Protective Order
Dear Judge Kaplan,
This is submitted in opposition to plaintiffs' motion for a protective order, May 30, 2000.
My name is Bryan Taylor, and I am a member of the public who has followed the DVD litigation on the internet since its inception. I have followed nearly every legal filing, every news story, every judicial decision in this case since it began. I oppose the overreaching protective order now before you. This is yet another in a series of legal maneuvers brought solely to secure tactical advantage.
Any member of the public has a right to follow the details of litigation that may affect the boundary of free speech, fair use, and legitimate sharing of information for reverse engineering. This is an important case which will set an important precedent that will affect the public. The mere possibility of "big money" interests overprotecting their intellectual property rights at the expense of rights traditionally enjoyed by consumers, scientists, and programmers is one that I believe demands public scrutiny.
I have studied the extensive resources available from a variety of sources on the internet that are relevant to the DVD cases. These include mailing lists and their archives, court documents, online discussion forums, news sites, news site feedback forums, government cites, online databases of US and European statutory and case law, as well as the websites of the plaintiffs, defendants, and their respective law firms.
In my research, I have encountered many levels of discontent with the position of the MPAA, et. al., in this case. I have not, however encountered anyone who seriously advocated violence or other forms of criminal harm to the Plaintiffs. The emails submitted on behalf of the Plaintiffs represent a variety of opinions, a few of which clearly go beyond the range of acceptable discourse. However, considering that these emails appear to have been sent to a public point-of-contact email address (hotline@mpaa.org) which is advertised on the Plaintiff's website at http://www.mpaa.org/anti-piracy/contact/index.htm
The handful of threatening emails, which like all the emails submitted, are dated in January of this year. In my observation, emotions have cooled somewhat in the following months. These isolated threats from half a year ago bear no relation to the effect that will be produced by allowing open access to the deposition and discovery material. I make this observation having tracked many similarly relevant documents that have become available over this same half year.
Based on my observations participating in Harvard's Openlaw/DVD project, the effect of preserving public access over the internet to the raw source or original materials is that intense scrutiny will be applied to the documents. As of 6/2/00, the mailing list program lists 171 Openlaw participants. These include a self selected group of lawyers, professors, students, programmers, scientists, and technology people and other interested members of the public. The diverse backgrounds and self-selected nature of our forum ensure a high degree of quality and rigor in the discussion.
Typically when a new document is posted somewhere on the internet it will come to the attention of someone in our forum who forwards the link to the rest of the list. Often a discussion will follow. If mistakes, inaccuracies, or misrepresentations are present, the diversity of the participants will likely lead to the truth being flushed out. This works on both sides of the argument.
In several cases, members of our group have contacted non-participant experts to settle questions. The range of knowledge accessible in such a way to our diverse group is immense. Openness and calm public examination foster truth seeking and truthfulness. This should benefit the parties, their attorneys, the Court, and Justice generally. The desire for public access to the material in question is not intended for any other purpose than to seek the truth.
For these reasons, I hope that you will deny the Plaintiffs motion to hide important deposition and discovery information from the public. If there are any situations that call for confidentially, I hope that you will treat them narrowly and restrict only the minimal content needed.
Sincerely,
Bryan Taylor
NUKE THE MPAA
Send them all a mail to hotline@mpaa.org!
Don't do that. It's a childish waste of time and could end up backfiring.
If you want to participate constructively, I suggest you join Openlaw's mailing list. If you want want to rant and raive then I suggest you go to a WWF match.
But the OS (if you can call winders a OS) cds that come with most OEM systems say on the "for sale with a new pc only" now is selling those on ebay a violation of that clause? How binding is that clause? I agree that if it is binding etc. that it really sucks.
The Supreme Court rejected such notices in 1908. The case is BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339(1908).
I'm worried that what will happen is that the FTC will adopt some lame standard that allows sites to say "look, we're FTC compliant" when in fact they are dealing out all sorts of privacy violations.
While many of the libertarians on /. (including myself) may see the merit of the "code is free speech" defense, the fact is that it has little legal merit. The authors of viruses can be prosecuted because that code may present a real danger. Just as the courts have decided to impose limits on verbal expression (i.e. the overused fire in a theater example) that can present a public danger, they will place restrictions on the distribution of code. One of the questions that is raised is: is the *threat* of piracy a public hazard that justifies the restriction on expression.
Piracy has little to do with DeCSS. Even the MPAA cannot cite an example of it being used for this. This is a case about communicating ideas learned by examining copyrighted material. This does not present a "danger" - in fact, just the opposite, suppressing it is the far more dangerous path.
The burden on the government, before it upholds a content based ban on speech is called the "strict scrutiny" standard. To meet this the governement must show that it regulates to protect a compelling state interest (whose maginitude is at least as great as the right to free speech) and that it does so by the least restrictive means.
This "Least restrictive means" requirement is a razor sharper than Occum's. The US Supreme Court reaffirmed it as a hard-line requirement this week in US v. Playboy.
Quoting Garbus: Right now the MPAA has got an order from the court which makes it possible to stop the posting of the DeCSS. The MPAA has now made a motion to expand the injunction to include linking. What I'd like to know is, if links themselves are prohibited, can simply posting the text of the URL itself be prohibited as well? If we get to this extreme, I think we've gone way over the first amendment line.
The Openlaw DVD Forum is going to submit an amicus brief making exactly this point. We're currently at the 4th draft and are trying to finish up by this weekend.
Garbus and his associate Edward Hernstadt have been very supportive of our attempts to apply open source methods to crafting legal arguments. Both have even posted to our mailing list. Anyone who wishes to get involved should check it out. There is also a very good resources page there.
I checked the copyright office's web site for the list of things that couldn't be copyrighted. Included on that list was "mere variations of typographic ornamentation, lettering, or coloring." That's a pretty good description of what HTML does.
No it is NOT a good description of what HTML does. Consider a link: there's more to this than meets the eye!.
The website refered to in an URL is an original contribution to the expressed idea within the the citation, as above linked article shows. The refered page is an outline for the Amicus Brief that Openlaw is writing in the NY DeCSS case to counter the MPAA's attempt to enjoin 2600's Mirror List. Our arguement is based on the fact that html is expressive and protected by the First Amendment.
Furthermore, don't confuse the map with the territory, so to speak. A command to tell a browser how to make text red is different from red text. Source code is speech because it expresses a method for making a computer produce a desired output. HTML meets this definition.
Remember, HTML is just a presentation "language". It's not what is copyrightable. What IS copyrightable, however, is the data that it marks up.
That's totally bunk. The choice of which tags go where is part of the copyrightable expression. The whole html file would be copyrighted as a 'literary work', which is how programs (in source or executable form) are considered under copyright law. HTML would almost certainly meet the (*extremely* broad) definition of a program in 17 USC 101, and would have copyright protection as a program.
However, it sounds very much like the original company created a 'work for hire', which means that the customer company owns the copyright. If not, all the person who posted would have to do is throw away the code, look at the output, and reverse engineer something that looks similar. Even if the result happened to be exactly the same, that wouldn't be a problem if it was independently created. This is the 'merger principle' which says ideas that can only be expressed in a few ways are copyable.
The prohibition contained in subparagraph (A) [anti-circumvention] shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title...
Your omission of the rest of the sentence makes this quote seem much stronger than it is. The "..." goes on to say: "as determined under subparagraph(C). "
The Librarian of Congress, under whom the Copyright Office operates, was given rulemaking powers in (C) to grant exeptions to (A). The legislative history of the DMCA shows that it was very important to Congress to preserve a way to allow fair access to allow fair use. The LOC rulemaking takes affect in Oct. and it will be absolutely critical to the subsequent interpretation of the law. I must disagree with prof. Lessig that the DMCA necessarily bans all cracking, even ones that lead to fair use. He points out that such an interpretation would run afoul of the First Amendment, but there is another interpretation that is much less far-reaching and is compatible with the law.
This interpretation is based on the fact that the law only bans circumvention of _access_ control measures. A limited defintion of "access" can distinguish "access control" from "use control". Accordingly, some of the members of the Openlaw DVD forum have submitted a reply comment urging the LOC to adopt such a limited definition.
This idea was first advanced by the original comment of the five leading Library Associations. We hope that the Copyright Office will treat these organizations with the enormous respect and credibility that they obviously deserve.
I've tried playing chess against the computer where I can see everything it is thinking. It still wins. It's the same reason why Linux is more secure than NT even though crackers can read our source code.
I sort of think of the open source movement as creating an "Anti-company" wereby we, the consumers, take back space previously the province of proprietary interests. We've come to the part where we've got to create our legal department.
I think there are several ways to do this. All rely on our community doing what it does best -- colaborating using the methods of open source.
One way to improve our "legal department" is to approach creation of legal documents as a plain old open source documentation project. This works for creating legal briefs, and it can even work for creating legislation. In states with direct ballot votes, this can be enough to get it into law. We must to some extent not be afraid to use technology and teamwork to push back the boundaries of the "guild".
In some cases, though, you are right, we need lawyers on our side doing full time "real" lawyer work. One way that I see to interest more lawyers to do pro bono work for us is to do pro bono work for them. Believe me, big law firms are wasting BIG BUCKS on IT "solutions". Perhaps we should target open source software towards law firms. Make it a goal to put free software operating systems on lawyers desks running free software applications that lawyers need. Technically, this isn't much of a challenge: basically, they need legal search engines, document management systems, and groupware. I think if more lawyers understand how our methods work and can touch and feel the benefits, we'll have created a lobbying effort better than one we could gotten by knocking on the front door.
I've been corresponding with Wendy Seltzer since the initial suggestion that we do this in the original proposal thread. Thanks to sholton for pointing us to openlaw and to ralphclark for efforts to bring this about.
I've also been in touch with Robin Gross from the EFF, who has indicated that she would like to participate in the forum. I hope that we can create a high quality combination of legal and technical input.
This step is just the start, I hope. I would like to encourage people to participate in this. I think it would be a good goal to file an 'amicus' brief to each of the DVD cases that is written using open source methods that represents the views of the open source community.
Here's some links that are especially useful for researching the legislative history of the DMCA. I believe these strongly contradict judge Kaplan's interpretations in his preliminary injunction opinio.
... As the hearing record demonstrates, I and many of my colleagues are deeply troubled by the prospect that this legislation could be used to create a `pay-per-use' society. We rejected the Administration's original proposed legislation in large part because of our concern that it would have established a legal framework for copyright owners to exploit at the expense of ordinary information consumers. By insisting on a meaningful role for the Assistant Secretary and by ensuring that a court would have an opportunity to assess a full record, we believe we have established an appropriate environment in which the fair use interests of society at large can be properly addressed.
Summary page for Legislative History of DMCA.
The following is most revealing: DMCA Comments of Commerce Chairman Bliley. Here's a few choice comments:
The Committee considered it particularly important to ensure that the concept of fair use remain firmly established in the law and that consumer electronics, telecommunications, computer, and other legitimate device manufacturers have the freedom to design new products without being subjected to the threat of litigation for making design decisions.
Sections 1201(a)(2) and (b)(1) make it illegal to manufacture, import, offer to the public, provide, or otherwise traffic in so-called `black boxes'--devices with no substantial non-infringing uses that are expressly intended to facilitate circumvention of technological measures for purposes of gaining access to or making a copy of a work. These provisions are not aimed at widely used staple articles of commerce, such as the consumer electronics, telecommunications, and computer products--including videocassette recorders, telecommunications switches, personal computers, and servers--used by businesses and consumers everyday for perfectly legitimate purposes.
Under section 1201(a)(1)(C), the Librarian of Congress must make certain determinations based on the recommendation of the Register of Copyrights, who must consult with the Assistant Secretary of Commerce for Communications and Information before making any such recommendations, which must be made on the record. As Chairman of the Committee on Commerce, I felt very strongly about ensuring that the Assistant Secretary would have a substantial and meaningful role in making fair use and related decisions, and that his or her views would be made a part of the record.
This article hits it right on the nose. The movie industry is leveraging CSS to create anti-competitive control and to inflate prices.
.S. V. PARAMOUNT PICTURES. Especially the first part and part (5) about block licencing.
This all happened before. Everyone should take a moment and read U
In this case the Supreme Count found that the motion picture industry was engaing in anti-competitive business practices in violation of the Sherman Act. They overruled the claim that copyright protection justify their business practices. The practices were:
Then:
A) Price Fixing - Using copyright licencing with strings attached to force theaters to raise prices
B) Tying - Using copyright licencing to sell one product (movie A) contingent on another (movie B)
Now:
A) Price Fixing - Using copyright licencing to inflate the price of DVD's using regional licencing
B) Tying - Using copyright licencing to sell one product (movie A) contingent on another (licenced player).
Intentions of legislators (provided they had any or bothered to think about them) are interesting, but do not have much relevance. It has been known for the courts to try to gauge the Congress' intent while trying to sort out murky laws, but the letter of law as passed is much, much more important. In the case of DMCA, it talks about circumventing devices used to control access to the copyrighted material and that is the rub. It does not talk about copying, it talks about access. This is exactly why DeCSS falls under DMCA.
Legislative histrory is and should be used by judges to resolve ambiguity in the plain text of the legislation. You have it exactly right, though - "it talks about circumventing DEVICES". Code is not a device. However, you didn't tell the whole story about circumvention access: the access it talks about is access "without the authority of the copyright holder". Fair use and the explicit DVD copyright language "for home use only" both grant this authority.
Oh, I see. Do you, then, claim that there is no harm whatsoever to MPAA from DeCSS and we are just trying to put some money into their pocket while they are running away screaming "Get that weirdo away from me!!!!"? It's all just a little misunderstanding, right?
Yes, emphatically. The MPAA are engaing in moronic business behavior. The economic payoff to the from allowing linux based playback should be huge - home use for linux is ~ 1-2% (growing daily) and these are the most technically savy users who are most likely to have advanced devices like a DVD. I am not alone: the fool.com article trashed the MPAA from the INVESTOR'S perspective. Waging war on your customer base is bad business. The VCR generated enormous profits for the movie industry despite it's copyability, but the MPAA had to be dragged kicking and screaming to this payoff to.
To restate, you seem to think that DMCA is an OK law that was misinterpreted by a dumb judge. I think that DMCA is a terrible law and the judge just applied it. You are horrified at the result and think that it was misapplied -- I think that the problem is with the law, not with its misinterpretation.
The DMCA was designed to prohibit things like cable descrambler boxes and PCI cards that use special hardware to decrypt pay-per-view or subscription internet broadcasts. It does this effectively and in these cases no claim can be made that "I'm trying to watch MY movie in my home as I please".
I listed extensive citations to the actual text of the bill to show that as written it does not prohibit DeCSS. It's very odd that you ignore this and attack my supporting legislative history point on the grounds that it isn't textual. I further supported my arguement that neither the text nor the intent would ban DeCSS with a 1st amendment arguement that says that Congress would have no power to do this even if they wanted to (which they didn't). If you'd like to argue otherwise, please go back to my original post and tell me which numbered points you think are wrong.
I strongly disagree with this. The DMCA was designed to prohibit "black-boxes" (as several legislators refered to them). It is not supposed to apply to source code. Congress did not intend to gut fair use as is clear to anyone who reads the floor debates. There are specific textual provisions that:
1. Restrict DMCA from applying to "free speach
2. Recognize and protect fair use 1201(c)(1) [Judge Kaplan misrepresents Congress's intention]
3. Recognize reverse engineering as legitimate 1201(f) [Kaplan's analysis of this is absolutely moronic]
4. Restrict prohibitions on access circumvention tools only when "without the authority of the copyright owner" (DVD's grant "for home use only") 1201(a)(3)(b)
5. Grant the policymaking power to identify "noninfringing uses" of access circumvention to the "Librarian of Congress" not to judge Kaplan 1201(a)(1)(B,C)
6. Do not list software or source code in the list of technological means 1201(a)(2) [The law ban's devices and services, not code]
Furthermore, the Judge's analysis on the "balancing" between the copyright power and the 1st amendment is completely out of sync with Supreme Court precedent (and the plain text of the DMCA as noted above).
1. He fails to employ "strict scrutiny" concept when using granted powers to restrict fundamental rights
2. Kaplan's doesn't cite the copyright power itself (and notes this), but rather the "necessary and proper" clause. Outrageous. It is neither necessary nor proper to restrict the first amendment.
2. He fails to employ the "least restrictive means" test
3. He fails to employ the "void-for-vagueness" and "overbreadth" tests
4. He looks the other way at a "standardless licencing" arrangement for prior restraint
5. The "balancing" test has been rejected decisively by the court in favor of the Brandeiss test = incitement likely to bring about imminent lawless action
6. Congress cannot delegate prior restraint inducing licencing powers to non-accountable officials (like companies!)
7. U.S. V. PARAMOUNT PICTURES, INC. restrained the copyright power to disallow noncompetitive business practices such as movie price fixing and "block licencing" a form of "tying" one product's licencing to that of another
His preliminary injuction ruling is laced throughout with a confusion about encryption and copy-protection. His conclusions of harm to the MPAA are founded on the lie that DeCSS is a piracy tool. It's not - it's a playback tool that will actually EXPAND the market for DVD's.
Here's a Supreme Court citation that shows the limits of copyright protection regarding restraint of free trade. Oh, by the way, the case is entitled U .S. V. PARAMOUNT PICTURES, INC.
It basically found the motion picture studios used their copyrights to engage in price fixing for movie admissions and also illegal tying of one product to another when they did "block licencing", whereby a theater can't exhibit the popular flick unless they also take unpopular ones.
Nice guys, those movie studios. NOT.
I got a reply email from Wendy Seltzer of the Berkman Center for Internet & Society at Harvard (which runs Openlaw). She expressed interest in the idea of putting the DeCSS cases into the Openlaw forum. She said she would spread the word around the Berkman Center team and respond back to me soon.
I also got a reply back from Stanton McCandlish of the EFF saying they were forwarding the suggestions to their legal staff.
The situations you refered to involve FOR PROFIT advice presented in a way that was found to be intentionally misleading.
I think your statements that there is something wrong with writing a brief or drafting legislation are way off mark. It is quite common for non-lawyers to submit such writings.
You cross the line only when you attempt to profit from giving legal advice.