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DVD CCA Part II - Waiting For The Judge
from the waiting-and-waiting-and-waiting dept.
I got a chance to speak to Tom McGuire, Vice-President of Marketing and Communications for the EFF, who provided part of the pro bono team of attorneys at court today.
"As I understand it, both sides presented arguments, and it sounds like both sides did a good job, although I'm hoping we did a much better job than they did. As far as I understand it, the Judge is going to review the arguments and written briefs that were submitted and hand over a decision in the next few days."
I also got to speak to Matthew Pavlovich, Defendant #13 in the case.
"I think we put together a solid defense. I don't think we're in the wrong. Most of these people are not under the jurisdiction of the California court. There's 15 year olds in Europe. There are real inconsistencies in the way that the prosecuring attorneys have handled this. We really appreciate the support from the computing community. Most of these people really understand what's going on, and their support has been really helpful. This is step one. There are two more cases, and these are federal cases. The fight's not over."
Today's hearing was a much-anticipated event in the Open Source community, but it was just another drop in the DVD encryption bucket. The MPAA filed two federal lawsuits on January 14th, promising that the legal debate over DVD encryption will go on for a very long time.
UPDATE by Andrew Bunner, defendant and courtroom observer:
On the implications of this case:
It would be a tragic blow to consumers and the constitution if the DVD CCA is allowed to win this case.
Consumers want to be able to watch DVDs on their Linux computers. The DVD CCA wants you to only watch DVDs through one of their pre-approved players.
The first amendment will be seriously eroded if Judge Elfving sets a precedent restricting our freedom to distribute the CSS algorithm. I'm wearing a T-shirt that has printed on it a copy of the decryption source code. If this injunction is granted, it will be illegal for me to wear this T-shirt. It will be illegal for you to photograph me wearing this T-shirt. In fact, it will be illegal for you to link to a photograph of me wearing this T-shirt.
On the trade secret argument:
Last night, I found 245 sites that make the supposed "trade secrets" available for download. At the Temporary Restraining Order hearing, one individual handed out printed copies of the "trade secrets". Another had the same material available on floppy diskettes that he was giving away. The algorithm and how to obtain the master keys has been widely discussed on mailing lists, in class rooms and in court.
It's not much of a secret anymore.
A list of mirror sites can be found at http://www.humpin.org/decss/. Be careful, though. By including that link in your story, are you making yourself a defendant?
(*) As we understand it, the phrase "trade secrets" in the plaintiff's filings refers to the master keys and the CSS algorithm.
On the misappropriation of trade secrets:
Yesterday, the counsel for the defense claimed that I should know that the Linux DVD player was based on stolen trade secrets. I don't believe anything was stolen. The DVD CCA underestimates the skill of the software development community. I know that these programmers are capable of reverse engineering and decrypting DVDs without resorting to theft.
On how I think the case will go:
There's only one way Judge Elfving can rule without re-interpreting the First Amemendment.
On copyrights:
Movies are already protected under copyright law. No one disputes that it's illegal to duplicate and redistribute movies... in any format. That's not what we're trying to do. By making the decrypting algorithm available we want to let consumers play their legitimately purchased movies on their Linux computers.
On the hopelessness of the MPAA's situation:
It's impossible to restrict consumers from making private copies of their legitimately purchased movies through any technical means. If you can play a movie, you can capture it and copy it. And as long as that copy is for personal use only, this is perfectly legal. We think the MPAA will eventually come around and recognize this truth.
On piracy:
It would take about 16 days to download a full-length DVD over a modem. I'd rather just buy the disk.
(*) The math... 4.7 GB * 1024 MB/GB * 1024 KB/MB / 3.5 KB/sec = 1,408,087 seconds to download a 4.7 GB movie over a 28.8 phone line that gets 3.5KB/sec. That works out to over 16 days of continuos downloading.
How I felt after the hearing:
We had a fantastic showing of support from the Linux community, cryptography experts and free speech advocates.
Our defense team did an excellent job outlining the absurdity of the plaintiff's position.
Let DeCSS Die (Score:4)
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
It's all the same (Score:4)
I don't think anyone is really arguing that DeCSS, specifically, needs to be enshrined...
----
I've been wondering since this started... (Score:4)
Well, in that case, why wasn't www.download.com shut down? I don't know if its still there, but a week after I heard about the code being pulled everywhere a friend told me and I verified for myself that download.com still listed this as a download, infact they listed it as "#1 Illegal Download of the Day"
Why do small websites get smacked and such a HUGE distributor of software not even get mentioned? Or did I miss it somewhere? Help me out, please.
E.
Re:Let DeCSS Die (Score:3)
Hear me out...
A key to this whole case (from the DVD side) is that you had to have reverse-engineered their software in order to break the encryption. This is not true. (though it would be easier). The method of attacking a problem is to use the tools available to the problem solver. These tools are what's at stake. This hack would have been more difficult without brute force tools and languages like perl.
The lessons are already incorporated in a number of projects, but that is mute if you take away the ability to use tools or scripts!
If I take this argument to it's conclusion (if the DVD industry has it's way) I would be banned from using any other method to view or playback their DVD discs. I don't care if their software is the best, I want the freedom to try and fail and try again.
Let DeCSS die but don't take my tools!
-- Andy
Time for geeks to learn law! (Score:3)
If you haven't already seen their press release, check it out here [eff.org]. BTW - there are a two links on that page to good info about their effort, including case documents to date.
And why not support them by joining [eff.org]?
DISCLAIMER: The preceding was not a paid advertisement for the EFF! *8-)
What are they really trying to do. (Score:5)
Could the DVD CCA be attacking a bunch of young people because they thought that those people were too poor to defend themselves from a crack team of lawyers?
The DVD CCA thought that they could walk right over those naive programmers and get the judge to hand them a court order with which they would use to bludgeon the rest of us back into line.
It makes me proud to see so many people pulling together to support these fellow programmers.
The only thing that has me worried is the fact that the same people that own the DVD CCA also own the press in the US. I have yet to see even a single news article or report in favor of the defendants in this case.
To listen to the main stream media the defendants are all pirates who want to rob everyone blind and sell inferior products.
I hope that the judge isn't as gullable as the DVD CCA thinks that he is.
Here are the facts that I believe to be true. I am wrong about most of them to hear the DVD CCA talk.
Fact: You don't need to decode the DVD's in order to copy them.
Fact: You do need to decode them in order to watch them or to make an archival copy of them.
Fact: It is perfectly legal for a person in the US to make an archival copy of any digital media that they own as long as they don't distribute them and as long as they only make a _reasonable_ number of archival copies. Reasonable being whether or not the judge thinks you were trying to pirate the software!
Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's. Why do you think all the software vendors stopped copy protecting their software?
Fact: Big business (and big government) will always harass the little guy in order to get him to fall into line. As long as we can show solidarity toward each other we are safe.
What is wrong with these people? (Score:4)
That said, I think what they are doing is wrong, in just about every sense of the word. It was there fault they didn't use decent encryption on the keys, (using deeper encryption would have made it much more difficult to brute-force the other keys after Xing's was discovered), But instead of excepting defeat, they try to pass there problem on to us, the computer using public. The sad thing is, it would not be unprecedented
In a Slashdot interview with L0pht a while back, they mentioned the Cell phone industry. When they created their standards, they didn't even bother to use any encryption whatsoever. Whether this was simple laziness, attempted cost savings, or malicious government intervention, we'll never know. When the cell phone system was cracked though, rather then building a better system, they lobbied congress to ban radio scanners. And not only were radio scanners banned but the combination of a computer, ROM burner and cell phone.
A friend of mine uses a hacked smart card to get free DSS dish cannels. The card is illegal. Its ridicules. Rather then building a sound system, the government caves in and banns any technology that can be used to circumvent the financial flows of the big campaign contributors. Public be damned.
In a way, there are not many differences between software like DeCSS and the other wrongly banned technology. But there is one. While the other things are devices, tools, DeCSS is an idea. Sure, you can use it as a tool, in the computer sense of the word. Run file though, decrypt, enjoy. But in my mind anything that can be fully expressed in written form on a T-shirt belongs in the domain of ideas. And that, there, is the problem. The movie industry, acting in their blind desire for money, seeks to ban an idea. And not only one idea, but winning this case will open the floodgates for corporate censorship.
While the idea of corporate censorship frightens me, it doesn't so much as the fact that they are doing this, that they are trying this. Surely they've figured out what this could mean for Americans, or for the world. In an era of increasing corporatism, its becoming increasingly clear that there's lack of conscious in there quest for ever higher profit margins is not only shocking, but dangerous. The corporations that control our government have no regard, whatsoever, for the health of our freedoms. (maybe I'm being naive here...)
DeCSS may be a small issue, (at least, for those of us without both a DVD drive and Linux
Not to mention the shockingly low signal to noise ratio in this thread... When I got here there were 27 posts, and only two with any content...
"Subtle Mind control? why do html buttons say submit?",
Both sides have a point, but we still win (Score:4)
- DeCSS does in fact make piracy of DVDs easier by making it easier to re-encode the material as
- This being said, it can be safely assumed that the DVD consortium is approaching this under false pretenses, and what they really want to do is maintain the profits they get from licensing players.
- This is evidenced by the fact that bit for bit copies can already be made of DVDs, thus circumventing the entire copy-protection scheme altogether. This, however, requires very expensive hardware, and would be done mainly by those in the realm of large-scale pirates, which are the ones that really do do harm and profit from someone else's work.
- The DeCSS code was not written with illegally obtained information. (i.e. employee of Zoran takes secret information home with him and writes the program, violating his NDA.)
- Reverse engineering for compatibility sake is legal in the USA. This is how Compaq et al created the first PC clones back in the 80's.
THEREFORE, both sides make valid points, and both have fallacies, but our side still holds the winning hand.
bp
Re:What are they really trying to do. (Score:3)
You cannot copy a DVD without css-auth.
You can copy the DVD bit by bit with your DVD-ROM drive on your PC, but you will not be able to play the copy without having the DVD disc in the DVD-ROM drive.
You appear to have bought into the unfortunate falsehoods spread by people who haven't looked up how DVD technology works. Rick Moen's letter posted on opendvd.org is one example of this lack of understanding.
Very simply: The DVD drives that are made for PC's are required to not return the encryption key for the DVD mpeg files *unless* the software requesting the key has authenticated itself with the DVD drive itself.
This is where the css-auth comes in. It use[sd] an authentication key originally ripped out of the xing DVD-player-software. (I gather they've got a bunch more as well already).
Can we just copy a DVD through my PC DVD drive without css-auth? Yes. Will the copy be playable in a normal DVD player/device? No.
Why not? Because your the DVD drive will not give you the key to decrypt the DVD disc's data until you run css-auth.
What is really amazing, is that so many people think the DVD group is suing the makers of css-auth with a complete lack of understanding of the technology. No, it's the people protesting against the lawsuit who seem to know nothing about the technology. I found plenty of documentation on this subject with a google search in a matter of minutes.
Is what the css-auth authors did illegal? I don't think so. Was it unethical? Perhaps. I would say that creating this software is kind of like if you are given a key to a store, and you have a personal copy made. However, by distributing this software, you would be analogously making a copy of the key to this store available to anyone who wants one. Neither of these is really particularly illegal, but the ethics behind it are pretty shady.
This analogy definitely breaksdown when you consider the sheer cost of copying DVDs with css-auth, but in time, we'll have the capacity to store hundreds of full length DVD films on a hard drive.
The only way I could see of perfectly copying the data from a DVD without something like css-auth, would be to run the DVD-player software in a debugger. You could get less perfect copies by capturing the memory regions where the video output from the player is going probably.
Re:What are they really trying to do. (Score:3)
The truth is rather more interesting . . . (Score:3)
Probably not true. 17 U.S.C. s. 117 [cornell.edu] does not apply to "any digital media," but is limited to computer programs. I suppose a tortured construction of hte definition of computer programs might be able to draw some digital content not routinely considered to be a program, but imagine the courts would re-read Contu and disagree.
Further, there is ample case law that states that only the OWNER of the copy has an archival right. Re-read your license to discover that you are merely the bailee of the vendor's copy, and you are SOL.
Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's.
I doubt it. Please cite the case. Even if that were true, the case would probably not survive the Digital Millenium Copyright Act anti-tech provisions.
Why do you think all the software vendors stopped copy protecting their software?
Because customers demanded it, and copy protection wasn't stopping much piracy. Trust me, I was there.
My View of The Day (Score:5)
Today, the DVD Copy Control Association and the EFF once again met in court, this time to argue for and against the ordering of a Preliminary Injunction against, basically, the entire Internet, forbidding further dissemination of DeCSS, the source code module that decrypts DVD MPEG streams. After today's hearing, there should be no doubt in anyone's mind that shrinkwrap license "agreements" are monsterously unethical and should on no account be allowed to stand.
It is worth noting up front that I am an adamant, vociferous opponent of these so-called "agreements", so I hope the reader will excuse some editorial bias. (Individuals interested in my editorial on the subject can find it here [best.com].) Also, events in court did not occur strictly in the order I will present; I will be grouping together related concepts to make them easier to compare.
Court began promptly at 13:30, and counsel for plaintiff and defendant introduced themselves (the names went by too quickly for me to get most of them). Judge Elfving indicated that he would not render his decision today, but would rather consider the arguments and filings before him and render a decision at a future time. He was unwilling to commit to a specific date, but indicated that it would not be overlong. Judge Elfving then invited plaintiff's counsel to present their argument.
Jeffrey Kessler began his argument with the following question: Can a user extract trade secrets in violation of a shrinkwrap agreement? A lot of other arguments were presented, but it seemed to me that the DVD CCA's entire case proceeds from this single precept.
In order to prevail in a trade secret violation, the plaintiff must show:
CCA's contention is that the reverse engineering employed to discover the CSS algorithm was prohibited by Xing's shrinkwrap license "agreement". (Kessler reiterated this point with some force throughout the proceeding.) Since the reverse engineering violated this contract provision, the algorithm discovered within was improperly obtained due to breach of contract, and is therefore a trade secret violation. DVD CCA therefore argues that they are entitled to a Preliminary Injuction forbidding further dissemination.
Kessler went to a lot of trouble establishing that the original source of DeCSS was Xing's player. An expert's affadivit asserts that the original DeCSS release contained only Xing's key, suggesting that it was the Xing player that had been reverse engineered. Presumably, by establishing Xing to be the original source, they can invoke Xing's "license" that prohibits inspection.
Kessler made the assertion that, even if the "clickwrap" license had somehow been avoided, it still applies and is in force, since the license stipulates that assent to the contract is made, not by clicking on "OK", but by installing and using the software.
Kessler also seemed to go to some lengths to attempt to establish when DeCSS made its first appearance, which appears to have been the binary-only release on 6 October, 1999 from the group M.O.R.E. (Masters Of Reverse Engineering). Subsequent to that, Stevenson's work (where he attacks the hash rather than the keys) appeared around 25 October, 1999. I presume he did this in an attempt to establish that any release subsequent to these dates "must" have come from the "improperly obtained" algorithms.
DVD CCA cited several court cases supporting their petition for a Preliminary Injuction, which were granted forbidding further dissemination of materials under dispute (notably, the Religious Technology Center (Scientology) vs. Netcom). Kessler further asserted that no court case has ever held reverse engineering to be proper.
Kessler also cited the recently effected Digital Millennium Copyright Act which, as a matter of "public policy", forbids reverse engineering. However, he went on to state that DVD CCA is not bringing suit under the DMCA; they are bringing suit under the Uniform Trade Secrets Act.
The plaintiffs also asserted that the "hacker community" clearly knew that DeCSS was obtained improperly, and proceeded to quote from postings in Slashdot discussion fora made back in July where random people opined that a DVD player for Linux might not be legal to develop. (There were no in-court mentions of Natalie Portman or hot grits.) Kessler asserts that this public discussion validates their claim that the defendants "should have known" DeCSS is illegal.
The plaintiff also stated that the fact people may have been trying to develop a DVD player for Linux is entirely beside the point. Moreover, he stated that DVD CCA was not discriminating against Linux, that they were more than willing to license CSS to any "credible party" who wanted to develop a DVD player.
Finally -- and I think this is fairly significant -- DVD CCA made the observation that, if this were a copyright case, there might be a provision for reverse engineering under the Fair Use doctrine. However, there is no such provision in Trade Secret law, and the reverse engineering is therefore improper.
Kessler then turned the floor over to Robert Sugarman, who proceeded to disparage the EFF's First Amendment arguments. He repudiated the assertion that the defendants were news sources, and that they should not be accorded the protections available to newspapers. He asserted that the defendants are doing much more than engaging in First Amendment-protected discussion on this issue.
He repudiated EFF's citation of the Bernstein case. Copyright was at issue in Bernstein; this is a Trade Secret issue.
He also likened the obtaining of the DeCSS algorithm to breaking into Coca Cola's inner sanctum and stealing a copy of their secret formula. (In fact, the analogy of Coke's secret formula figured prominently in the plaintiff's arguments.)
Then he dropped a small bomb and stated outright, in open court, that they seek to enjoin not only hosting of the DeCSS code, but links to the DeCSS code. He asserted that, because links provide "instant access" to the disputed material, they should be forbidden as well.
He attempted to discredit the Open Source (nee "Hacker") community's motives by bringing to the court's attention the DeCSS Distribution Contest [zgp.org], and Copyleft's new DeCSS t-shirts [copyleft.net], painting it as juvenile and irresponsible.
For some reason, he also called attention to the recent cracking of PacBell's ISP accounts, and CDUniverse's credit card database. Presumably, he was trying to associate the criminal activities of these individuals with the activities of the defendants in the case, both of which "clearly" demand decisive action from the court.
Finally, Mr. Sugarman asserted that, if a Preliminary Injunction is not granted, the message it will send is:
These remarks by the plaintiff's counsel consumed about an hour and a half. Judge Elfving called a 15 minute recess, after which counsel for the defense began.
The first guy (whose name I did not catch) seemed to rely more on bombast and specious details than on concrete questions of ethics and law. Nevertheless, he did raise some interesting points.
The Scientology case was raised again, this time to point out that the Preliminary Injunction granted and affirmed in that case applied only to one person, not to the entire Internet. He went on to cite the cases of Sega vs. Accolade and Vault vs. Quaid, cases in which reverse engineering was upheld as permissible.
He asserted there was only one real defendant in this case, the one who allegedly did the "dirty deed": Mr. Johansen of Norway who originally developed and published DeCSS. If there is indeed a legitimate action that can be taken, it is solely against this individual.
He turned the plaintiff's Coca Cola analogy on its head by stating that one could buy a can of Coke, take it to a chemical analysis lab, figure out what it was made of, and publish the results. Such an act would be entirely proper under the Trade Secret Act under which DVD CCA is suing.
The defense also argued that trade secret law is a "relational tort," enabling an action of one party against another. It does not protect the secret itself.
He asked, "Where is Xing in this case?" If, as submitted, DVD CCA's license requires licensees to take reasonable measures to protect their trade secrets, then Xing has clearly failed in this obligation. Further, he asserted the DVD CCA does not provide code itself, but expects the individual licensees to develop compliant code. Therefore, any misappropriated technology belongs to Xing, not to DVD CCA.
Finally, he made a highly dubious assertion that there was no evidence submitted to establish that DVD CCA were the legitimately assigned licensors of CSS (which has been developed by Matsushita and Toshiba), and therefore were not empowered to bring this action. (This was readily debunked by the plaintiff during rebuttal.)
After he finished, Eben Moglen [columbia.edu], Professor of Law from Columbia Law School took over. I don't think I overstate the issue when I say this guy absolutely kicked ass. Besides being a good orator, the man clearly understands technology as well as law. He's written a treatise on the issues of intellectual property in the digital age entitled Anarchism Triumphant: Free Software and the Death of Copyright. [columbia.edu]
Mr. Moglen basically proceeded to shred the plaintiff's arguments. He pointed out that DeCSS has nothing to do with wholesale copying; DVDs may be bit-for-bit duplicated and will play in any player without the use of DeCSS. He debunked the assertion of "irreparable harm" to the movie industry by doing some basic bandwidth math showing that downloading a 5.1 gigabyte movie will take you 30 hours (DSL speeds), and if you have a direct backbone connection, it'll take ten hours. Wholesale copying of movies in this manner is therefore not a realistic concern.
He raised the plaintiff's assertion that, while it may not be economically viable to copy movies today, these technologies will become cheaper and more available in the future. However, such theoretical future damages are not at issue; the court need only concern itself with what is happening now.
Mr. Moglen went on to describe CSS as extremely weak, and outlined Stevenson's novel attack against the cipher, which involves attacking the hash value to reconstruct the "title key" by which the MPEG stream may be decoded. In such a case, none of DVD CCA's keys are employed. The title key for any disc can be cracked on a Pentium-III in about 18 seconds. He drove home CSS's weakness by mentioning that Mr. Johansen of Norway is 15 years of age. Thus, the trade secret at issue must not have have been very secret, as it was literally child's play to discover it.
With all this, Moglen asserted that no cause of action remains because no trade secret remains. The "secret" in question was obtained by legitimate means, and Stevenson's subsequent work illustrates that none of DVD CCA's alleged secrets need be involved in decrypting a DVD. Had the DVD CCA acted more swiftly in restraining Mr. Johansen, they might have a cause for action. As it is, they've waited too long.
When he concluded, Moglen received light applause from the gallery as Judge Elfving asked for rebuttal from the plaintiffs.
Mr. Kessler assailed the work of Stevenson, saying that it proceeded from the improper DeCSS code by Johansen. Therefore, Stevenson's work, though novel, is "contaminated" by Johansen's alleged breach of the Xing "license", and the trade secret is still protected.
He argued against defense assertions that no license was in force, saying basically, "Yes, there was!" He attacked EFF's citation of the Sega case, stating that it was a copyright case, and that reverse engineering was held to be proper under Fair Use. This is a trade secret issue.
However, he went on to call attention to the DMCA again, stating that, as a matter of "public policy", reverse engineering is held to be improper. Then he flips again, and says they're not citing DMCA, only the Uniform Trade Secrets Act (which has no provisions for fair use).
Finally, the floor was turned over to Mr. Sugarman who (under pressure of time) characterized Professor Moglen's arguments as entertaining but irrelevant. All DVD CCA seeks, says Sugarman, is to take down the DeCSS code and all links to the DeCSS code. They are not seeking damages, nor are they seeking to quash discussion of the merits of the algorithm; only the trade secret itself.
Judge Elfving then thanked counsels, said there was a lot to think about, and would render his decision as soon as possible. Court was then adjourned at around 16:50.
My Analysis and Opinion:
We may readily concede that CSS was a trade secret, developed in secret, and made available under a comprehensive contract that obligated licensees to maintain the secrecy of the techniques used. It also seems fairly certain that the initial cracking of the CSS involved taking apart the Xing player and seeing how it worked. In order for this action to be a trade secret violation, Johansen's disassembly would have to be an improper use.
In order for it to have been improper, Johansen would have to be laboring under an obligation to maintain the secrecy of the Xing code and the CSS algorithm. The DVD CCA asserts that this obligation existed in the form of the shrinkwrap "agreement" which restricted, among other things, reverse engineering. So the DVD CCA's entire case hinges on whether shrinkwrap "licenses" are enforceable.
Let us put aside the fact that Johansen is Norwegian, where different laws and standards apply; and let us also put aside the fact that he is a minor, who likely can't be bound to contracts without parental consent (again, Norwegian law may differ on this point). Let us concentrate instead on this contract that, by the most tenuous forms of assent, may be considered in force and remove from the licensee a litany of valuable rights, including reverse engineering.
As I stated earlier, it is my adamant position that such documents are pure fiction; that they are not and should not be taken seriously. These instruments have little basis in law, and no basis whatsoever in simple ethics. They run counter to the real and reasonable expectations of consumers when they purchase software; that a sale has taken place, and they hold title to that particular copy of the software, subject to copyright restrictions. The "agreements" seek to alter the terms of the sale after the fact.
Further, these contracts attempt to escape vendors from the provisions of consumer protection laws, "lemon" laws, and remove from consumers their rights under Fair Use provisions of copyright law and, in some cases, the First Amendment (by forbidding discussion of benchmarks). And all one needs to do to assent to such onerous conditions is to, "install and use the software."
If A.H.Robins had attached such a license to its Dalkon Sheild, would it have been upheld? Would thousands of women around the country have found themselves unable to seek damages because they had "agreed" to hold A.H.Robins harmless? If Black&Decker attached such a license to its power saws saying you could only use Black&Decker saw blades, could it be enforced? We might concede they could cancel the warranty, but could they sue you for breach of contract, as DVD CCA has done over CSS?
Even if we were to presume such licenses are enforceable, how could they be said to apply to minors, who cannot be bound to contracts without parental consent? Must we then require that computer stores not sell software of any kind to anyone under age 18?
The idea is worse than ludicrous, it is offensive. No credible argument can be brought to bear that shrinkwrap licenses have any constructive use or benefit -- for consumers or publishers -- much less any foundation in ethics and basic human decency.
Some suggest that the "parade of horribles" that shrinkwraps enable has not happened, and is not likely to happen. I submit that a California corporation seeking a broad injunction, reaching beyond the borders of the state and even the country, to constrain domestic and foreign nationals from engaging in legitimate, ethical behavior to be a "horrible" that even the most paranoid among us could not have anticipated. There can be no further doubt that shrinkwrap licenses are a big, fat, ugly problem, and must not under any circumstances be allowed to stand.
Those who might suggest the GPL is weakened by such a position need not worry. While most commercial software "licenses" purport to constrain use, the GPL constrains copying. Absent a license of any kind, you still have the right to use your lawfully obtained software. You would not, however, have the right to make and distribute copies; the default conditions of copyright law apply. (This is true even if you're a minor.) Right to Use is concomitant with purchase; right to copy is not.
It is difficult to predict how the Judge will rule. Unlike the TRO hearing, the plaintiff was very well prepared. Both sides presented their arguments well. Judge Elfving stated that he wishes to be thorough, and will doubtless spend a good deal of effort considering the arguments. Still, both sides were articulate, and it will depend on who Judge Elfving chooses to believe, so the decision could go either way. Cross your fingers...
Schwab
Getting the facts in order (and a few opinions) (Score:5)
The industry knows their encryption is weak, and thus will be quickly defeated. The only reason they might be serious about it is because the movie industry doesn't want to release digital copies verbatim to consumers without protection. The CSS encryption was a small and ultimately ineffective bandage the DVD industry applied to their format to coax the studios to use their technology. If the studios should be upset with anyone, it's the CSS people. This lawsuit is likely just them covering their own asses.
Regardless of its purpose, the lawsuit is very dangerous from a consumer rights perspective. I've stated before (perhaps too strongly, this fiasco does make me rather angry) that I'll never buy a DVD under these conditions. I would recommend that others avoid them as well. Their involvement in defining our fair use rights is a conflict of interest at best. We cannot give our rights up just so some corporations can make a few extra million in pocket change. That's shady ethics if I've ever heard of it.
Excellent report/analysis. Comments (Score:3)
Schwab, excellent reporting job. Damn I wish I'd been able to attend the session!
Eblen Moglen, if you don't know, is a Columbia Law School professor, and has provided legal assistance to the FSF for years. His views are rather leftish and he's very much the consumer/public advocate. His legal arguments are superb. I've read his stuff, it would have been wonderful to see him in action.
The DeCSS cases are very interesting in that they're pushing the limits of two rather tenuous legal constructs: shrinkwrap (in particular, American commerce law, which is actually state law, applied against a foreign national minor for actions in a foreign country), and 17 USC 1201, the anti-circumvention measures added to copyright law in 1998 by the DMCA.
Shrinkwrap has been under attack for years. While there is some justification to holding that some legal obligations may be made or liabilities avoided by "shrink wrap" agreements (one landmark case involves cruise ship liability attached to ticket purchase), the extant claims attached to most software these days can only be seen as ludicrous.
The anti-circumvention provisions of copyright have been tested somewhat in actions by Sony against
...and I suppose that if T-shirt slogans are juvinile, that the Vietnam war protesters really didn't warrant serious consideration.
To clarify your points about the GPL vis-a-vis shrinkwrap licenses:
Typical shrinkwrap licenses are subtractive instruments. The GPL is an additive instrument.
One point of disagreement. I think that there are conditions, useful, and very limited, under which shrinkwrap agreements are an acceptable means of reaching a codified agreement between two parties. You do this all the time -- if you park your car in a private lot, buy a movie ticket, book a flight, etc. However, the rights which can be reserved, and the rights you are required to give up, under such agreements should be very tightly limited. I do agree strongly that the current situation involving shrinkwrap/clickwrap licenses is insane, and that the likely changes under UCITA are even worse.
What part of "Gestalt" don't you understand?
Re:My View of The Day--Shrinkwrap ==void (Score:3)
Now how does this apply to shrinkwraps? Exactly the same way. The Supreme Court is very reluctant to overturn previous decisions. They may amend them, but can you imagine what would happen if all of a sudden you could not sell you text books back? Or could not sell your car because of some small print under the hood? I would think that the plaintiff's in this case are already on very thin ice by citing a shrinkwrap agreement that has never really been tested in court at a high and very publicized level (at least that I know of.) Note that the shrinkwrap doesn't cover things like piracy because it's very easily enforceable under copyright law (you can't go by a William Gibson book and then print out 3 million copies at kinko's and sell them can you?) The blurb about copying software in the shrinkwrap appears to be mainly to tie it in to other law and make it look more official. Now if the shrinkwrap is unenforcable, and if the person who did the code is probably too young to be bound by it anyway, then how can they win this case?
I think that with enough legle muscle they might get an injunction at some point that would be appealed and could drag this case on for years. They had been betting on the fact that they have more money and lawyers and can litigate this for the next decade if they have to, but it looks like they didn't count on the EFF getting involved. I can also see the ACLU and other civil rights organizations getting involved in this if they manage to get links pulled as well.
Les Weinmunson