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DVD/DeCSS: MPAA Wins In New York 547

Posted by michael
from the good-guys-finish-last dept.
Jim Tyre writes: "Judge Kaplan's ruling is out." The actual judgment is a separate document. Note that the judgment forbids Defendants and anyone acting in concert with them from posting or linking to the DeCSS code.Update: 08/17 07:57 PM by H :Taken from an earlier post: The ruling is availible online. The New York Times has a concise statement concering the case - essentially, the judge rejected the arguement that computer code counts as free speech, and therefore should be protected by the First Amendment. However, it should be noted that this ruling was *expected* by the 2600 folks, as Martin Garbus, one of the lawyers noted. (Garbus, it should be noted, has been before the Supreme Court /19/ times). This will mean that the Appeal will go higher, and that means that if/when the judgement is overturned, it will affect more than just NY, as this would have.

A quote from the conclusion:

VI. Conclusion

In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.

Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.

Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era.

Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs? favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment. Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory relief.

SO ORDERED.

Dated: August 17, 2000

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DVD/DeCSS: MPAA Wins in New York

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  • by Anonymous Coward
    There's no reason for copyright except for economic gain.

    No, the reason for copyright is not to enrich authors. The reason for copyright is to provide an incentive to publish works. The public benefit comes from:

    1) The ability to utilize the work during the copyright term (much of copyright law is concerned with what "fair use" is.)

    2) The reversion of the work into the public domain at the end of the copyright term.

    The continuing extension of the copyright terms has rendered (2) meaningless. Clearly, the copyright trust has firm control over Congress, and there is simply nothing we can do about that. They have the most money to spend, and whenever the last term extension is about to run out, you can bet they'll lobby Congress to create a new one.

    The disturbing part of this case is that it has rendered (1) meaningless. Kaplan's ruling essentially allows companies to disregard the entire part of the copyright code that defines fair use, and lets them instead, by the inclusion of pretextual encryption, write their own "copyright laws" in whatever way they want to. You thought you had the right to watch your DVD? As of today, you don't. This decision gives the MPAA the right to dictate the conditions under which you can watch DVDs that you own, on equipment that you also own. That's a right that they never had before.

    So my question is?

    Does copyright have any remaining public benefit?

    If not, then should it be discarded or ignored?
  • * If DeCSS was made for Linux DVD players, then why was the compiled Windows port made and released?

    If Contrex wanted to clone the Sony Playstation entirely, why did their early versions use the Sony BIOS?

    For those who don't recall, the court rules that even though Contrex used Sony copy righted code for devolpment, that is fair use. that is they needed to test parts of their system seperatly (ie the hardware simulation from software), and the only way to do what was with copyrighted code. Legal because they did not sell said code.

    Or to put it simply, deCSS had to be a windows program first because the part to read DVDs in linux was not working. By making it a windows program they can test the relavent part (that which they were working on) without waiting for other code to be debugged.

  • The MPAA has been using the big lie strategy throughout the DeCSS case and the ruling today was the first success. The lie the MPAA has been pushing is that this case is about piracy and it appears they've repeated often it enough to get a District Court judge to believe it.

    To summarize the facts:

    1. DVD content is encrypted
    2. DVD players include the decryption keys necessary to decode an encrypted disc
    3. Decryption is only necessary to view the DVD content
    4. Copying the encrypted data produces a valid DVD
    5. The MPAA has been unable to demonstrate even a single act of piracy using DeCSS despite literally the millions of bootleg DVDs which exist.

    The reason there's no evidence to support a piracy case is because bootlegging a DVD is like photocopying a document with encoded data - even if you don't have the key to view it yourself, a copy will be perfectly viewable to anyone who does have a copy of the key.

    The real issue here is control:

    • The MPAA feel that they have the right to control which areas of the world a DVD may be viewed in - it's not a case of not offering it for sale; if you buy a DVD in another region, you'd need to buy a DVD player there as well. Legally you have no options if a given movie is never offered for sale in your region. The other benefit is that the MPAA can get those nice licensing fees from player manufacturers.
    • The more serious issue is fair-use. The DVD encryption technology is also intended to prevent recognized legal uses of copyrighted material. The copyright law changes the MPAA lobby was unable to get passed are now installed by technical means.
    Of course, Judge Kaplan ignored all of this. Note that claim "[the d]efendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located."? That's the big lie. Did anyone hear this claim? Did anyone of the defendants state that content producers should not be paid? I seem to recall the arguments focusing on whether the MPAA could dictate the software program you use to play back your legally-owned DVD.

    This is the value in repeating a lie often enough - the MPAA managed to convince a judge to base a ruling on a straw-man argument which was never actually made!

  • by Masem (1171)
    Only one court in the nation has the ability to declare a federal law unconstitutional, and that is the 9 boys and girls in WashDC. If any judge had that power hypothetically, then their ruling would only hold in the region where his court had power (as in this case, only the circuit that contains NY (9th?)), while remaining valid in all other parts of the country. What if two similar cases were filed in two district courts simulatenously, and the judges had different opinions on the outcome? (RIAA is currently in such a situation) A judge can certainly raise issues of constitutionality that may make for an appeals but cannot make a law unconstitutional. That's all parts of the checks and balances that are set up by the Founding Fathers.

    Now, if you start talking state laws and the like, a federal judge may be able to declare these unconstitution wrt to the US constitution, but they will generally not see these: state law disputes typically go from state supreme court to the US supreme court unless issues of interstate commerce come up.

  • Judge Kaplan drew an analogy between DeCSS and computer viruses in order to justify the censorship he is engaged in on the basis of public harm.

    There's just one little problem with his analogy - as far as I know, writing a virus is perfectly legal.

    The criminal act embodied in spreading a virus is not the authorship of the virus, it's the malicious (or negligent) unleashing of that virus into the wild. It's not free speech to deliberately trick someone into running a destructive program.

    It is, however, protected speech when you write one. Academics and security specialists must have the right to author virus code in order to demonstrate potential real-world security threats, to critique existing security and anti-virus systems, and generally express their technical ideas in the most convenient manner possible. In this context, it's perfectly reasonable to allow someone to write a dangerous virus and distribute it to others - the intent is to convey ideas, not to wreak havoc. It is only when the act of malicious distribution occurs that the distributor becomes a criminal.

    In the same way, DeCSS is a Constitutionally protected embodiment of ideas about DVD content control, and deserves the full protection of the First Amendment. Those who use it for movie piracy can rot in jail for all I care, but DeCSS is more than just movie piracy. It is the expression of someone's knowledge and understanding, and when we forbid that, we lose a very real piece of our free society.

  • by bkosse (1219)
    I said it above, but the judicial branch of the government, at all levels, can make the claim that a law is unconstitutional. They can't pass claim on whether the law should be there or not from a "good law/bad law" standpoint, but from a "legal law/illegal law", they have no real restrictions.

    This is an illegal law, and hopefully the S.C. will realize that.

    --
    Ben Kosse

  • Well, 54 in the pdf, but page 50 logically. The document discussed whether or not source code could be considered speech. Fortunately they do come down on the side of source code and even object code being forms of expression that do fall under the rules of Free Speech as given in the First Ammendment (to the US constitution).

    It's not the ruling we wanted, but at least it doesn't say that code isn't speech -- a precident like that would make other rulings harder to win in the future.
    --
  • He can rule that the case is not applicable because of Constiutionality. (Remember encryption source was ruled as protected speech (Meaning that ITAR was viewed as Unconstiutional in the jurisdiction that the ruling was handed down from)) Basically, any Federal court can rule based off of Constitutionality- it just only applies in their jurisdiction (The Supreme Court can effectively erase a law- their jurisdiction is the whole country...).
  • It sounded like they might have shifted things a little- but it appears that Kaplan at the last moment went with a literal interpretation of things, the Constitution be damned. (He did have the room to declare the case in favor of the defendants on Constitutional grounds (and he seemed like he might do so in the transcripts from the last day...)- but he chose the decision he came up with, going so far as to tar and feather us as being pirates.)
  • If they only took it up with the University, then there's little that would be done- the University will not act on things like this. What the Pro-choicer's should have done was filed a criminal mischief charge (that IS what it was!) against the Pro-lifers.

    While I'm pro-life and I feel strongly about the whole thing, it's not appropriate (nor, is it Christian in my case) to comport myself in that manner- and it's illegal to boot. Two wrongs (well, one less than the other...) don't make it all right, now does it?
  • If they take the position that the Sony player does not circumvent, then how could they argue that DeCSS or Livid does circumvent?

    Because the Sony player only allows playback, not direct conversion to an unprotected form. If you took DeCSS and made it into a program that *only* played the DVD and didn't allow it to be saved as .mpg or whatever, then you'd have a defensible case.

  • Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement.

    Well, that explains his decision - computer code, free speech, murder - they all need curtailing equally.

  • For no reason I understand, the original PDF kept instantly crashing my copy of Adobe Acrobat Reader 4.0/Linux. So, I text-ized that baby. It's not quite as pretty, and you'll need an xterm that's about 95 characters wide to really appreciate it, but it's here nonetheless [technopagan.org].
  • Well, Fargo, the movie. It takes place in Minnesotta, doesn't it?
  • The governor of Minnesotta, Jesse Ventura. Hey my ex girlfriend is from Minnesotta (now that's an interesting input, isn't it?) and from what she told me about this state, I can say that's the only positive thing to remember about it -- okay, maybe Fargo.

    Are you still following me? Well my ex's girlfriend was a typical middle class american women, church bigot and shit, and she actually believed that god talked to her. I never ever talked to her! I even refused to meet her.

  • Oups it's actually her mother that talked to god.
  • Did they say something to link themselves [to stuff like the aforementioned "phreaker" philosophy]?

    Have you ever read 2600?

  • Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.

    [emphasis mine]

    Is this really the public perception of the Free Software/Open Content movements? Unfortunately, I fear this particular segment of the ruling is going to be bandied about a great deal in the media from now on. If it's not now, it may well be.

    I can't say I was ever that comfortable having 2600 being the ones standing up for us in this case. This is exactly the impression I was afraid of them giving.

  • Remember, this is Emmanuel Goldstein from 2600 here... read the mag... you could certainly get the impression that they believe information should be available to whomever is clever enough to find it...

    This month's issue had all the info on a Dept. of Justice computer system from some state or other, including a helpdesk number to call to do some "social engineering" of the system...

    Don't get me wrong, I'm a fan of 2600, but don't be surprised if the judge isn't!

    ---

  • Kaplan all but admitted that the case is beyond his scope to do anything interesting. I'm looking forward to the real action, either in the appeal(s) or in Congress (anyone contacted Senator Hatch about this, since he seems clueful about fair use and moreover has the power to make it stick?).
  • Its hard to accept the verdict because, as some people are having fun illustrating with reductio ad absurdum arguments, giving legal force to copyright holders attempts to control access to their works is unclear in its meaning and of dubious practicality.

    CSS is not a very good access control system. You can copy DVDs wholesale, given some expensive equipment, without decoding them. Similarly, if you decode the movies you need more storage space and bandwidth than any domestic pirate might reasonably be expected to have. Thus it neither stops big pirates, nor small ones (who the nature of the medium has already stopped). Its only real effect is to prevent reading and copying the disks in unlicenses equipment, hence this whole thing is a blatant use of copyright in restraint of trade.

    Taking this into account, the whole question of what an access control mechanism is comes into account. If we're going to enforce the anti-circumvention provision even against ineffective access control, why the hell *have* access control ? Why not just let the copyright holder set the license conditions and enforce those ?

    Of course the answer is rather clear: copyright holders have no interest in fair use, and given their choice they'd prevent it. You can of course see from this that the DMCA shifts the balance of power in favor of the copyright monopolist, and on those grounds it may very well be unconstitutional.
  • Well first, I am allowed to reverse engineer and decrypt software, but thats because I'm an EU, not USA, citizen. So nyah. On the other hand seeing people do stupid things upsets me. I should however point out that under *your* constitution congress passing a law is not the last word in the matter. If it conflicts with existing law, or with the constitution it doesn't count. To take that a little further: I don't consider the law to regulate what I'm allowed to do, merely the consequences if I do it and get caught. Thus if I think the law is stupid I'll break it if I can get away with it, and try to get it changed.

    In my view the issue is not that the DMCA is bad because it dictated this decision. The DMCA is bad because its nonsensical. To give "access control" legal status is either a) unnecessary because if access control works there is not need to back it up with laws or b) an attempt to allow copyright holders to dictate the conditions of sale by the back door, and hence circumvent fair use. Given that I believe unbreakable access control to be impossible, the DMCA seems likely to be unconstitutional as fair use is protected (but not defined) in the US constitution.

    CSS not being "good" is relevant because how the DMCA is enforced is as yet undecided. It may be that it only applies ot "good" access control under some criterea not as yet decided.

  • At trial, defendants repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated, have no direct evidence of a specific occasion on which any person decrypted a copyrighted motion picture with DeCSS and transmitted it over the Internet. But that is unpersuasive. Plaintiffs expert expended very little effort to find someone in an IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one of plaintiffs copyrighted motion pictures, for a copy of Sleepless in Seattle.
    -Snip-

    I'd call this a major weakness in the analysis. Very little effort does not describe the process (and this witness's testimony was under attack because of the methodology used.. the test was actually done by someone familiar with the movie-trading underground, not an 'average consumer') and this swap does not prove that anyone outside the MPAA has ever used DeCSS to pirate a movie. Why is this presented here?

    And although the Court does not accept the list, which is hearsay, as proof of the truth of the matters asserted therein, it does note that advertisements for decrypted versions of copyrighted movies first appeared on the Internet in substantial numbers in late 1999, following the posting of DeCSS.

    We all suspected this kind of logical analysis would happen, and sadly Kaplan too easily falls into this basic false analysis. Is this the kind of thing that makes for good appeals?
  • Say goodbye to academic journals:

    First, Section 1201(f)(3) permits information acquired through reverse engineering to be made available to others only by the person who acquired the information. But these defendants did not do any reverse engineering. They simply took DeCSS off someone else's web site and posted it on their own.
    Defendants would be in no stronger position even if they had authored DeCSS. The right to make the information available extends only to dissemination solely for the purpose of achieving interoperability as defined in the statute. It does not apply to public dissemination of means of circumvention, as the legislative history confirms. These defendants, however, did not post DeCSS solely to achieve interoperability with Linux or anything else.


    This interpretation is unconstitutional on its face. (IANAL, just pissed off) What Kaplan is saying here is that the right to report the results of reverse engineering is restricted not only to the person who directly reverse engineered but when it is reported it must be done with the intent to achieve interoperability.

    Which form of speech has been restricted in this manner previously, that would allow Kaplan to get away with it here?
  • I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD and sue Sony for trafficking in a player that plays it.

    Well, in order to MAKE that DVD, you have to ENCRYPT it, and it is that ENCRYPTION that grants the "autorization" to DECRYPT the DVD by a "legal" DVD reader.

  • I know that several organizations (the Washington Post, for example) have printed photographs (or partial photos) of the DeCSS t-shirts. Has anyone thought about collecting those various photographs together, with proper attribution, and putting them on a web page? I'd bet if you get enough of them any reasonably industrious person could piece together the original code...

    What would happen to the trade secret issue then? Collected legitimately from multiple legally published photographs?

    Just a thought....

  • This is not true. In principle, any judge can rule any law unconstitutional, if they feel confident and correct in doing so, and have the courage. As a matter of practice, striking down a law as unconstitutional is a risky proposition for a lower court judge, who winds up looking foolish and/or reckless if his decision is promptly overturned by an appeals court.

    That's why most lower court judges tend to bend over backwards to find a constitutional interpretation of even bad laws, but that doesn't mean that they aren't empowered to toss out an unconstitutional law.
  • So am I breaking the law if I wear my DeCSS shirt tomorrow?

    You are if you happen to be one of the people specifically covered by the judgement:

    The Remaining Defendants, their officers, agents, servants, employees and attorneys and all persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise be and they hereby are permanently enjoined and restrained ...

  • mirror [mud.nu] in the Netherlands of the 3 PDF files of Courtweb.
  • I agree 100%. What seem people can't handle is that this form of "speech" does erode the rights of copyright holder. In essence, the copyright allows the holder to (mostly) assert the terms and conditions of usage, so that they may profit as they see fit. DeCSS's sole purpose is to poke a hole in those terms and conditions. Whether or not the DeCSS advocates agree with the particular terms is a totally different issue and is largely irrelevant. The court just determined that these means are not legal, and the using the "speech" argument as a cover for going around the backway is not sufficient. That's the law, and they obviously have very little understanding of it.
  • you can't create laws that conflict with the constitutional dogma

    I kinda prefer it that way. The constitution is pretty open and vague, allowing plenty of new laws to be passed (in fact, detailing HOW to pass them). What problem do you have with the Constitution?

    Finkployd
  • As an American I'm outraged at what you just said. I'm even more outraged that you are right.

    Maybe you should go back to mother england and hope things are better there.

    They aren't, I refer you to the recent RIP legislation as evidence of this. At least I can still encrypt things.

    Finkployd
  • you can't create laws that conflict with the constitutional dogma...

    Why is it that you seem to have a problem with the constitution? Even though it's no longer respected by our lawmakers, the constitution was intended to be a leash to keep our government from taking too much power out of the hands of the people.

    Just in case you hadn't realized it, our constitution would forbid it if some law maker wanted to make it a crime to criticize a politician and make anal rape the penalty.

    LK
  • the important phrase there is "by securing for limited Times"
    there's no reason for copyright except for economic gain. The theory here is that by granting exclusive rights, then the authors and inventors will have an economic incentive to produce new works. The problem is that large IP companies have successfully lobbied the Congress by to extend by definite periods the length of copyright. Effectively, the limiting factor on copyright has been stripped away, because whenever an important property (Mickey Mouse is the classic example used here, i suppose) is up to expire, Congress extends the duration of copyright protection. This retains the incentive for new creation, but there is a net loss of progress of "Science and useful Arts" because appropriation becomes impossible. The use of access controls to limit fair use, noted by Kaplan, is probably the most disturbing stifling effect of this trend.
    This is not a cool thing. For those of us in the US, our representatives passed it. There's an election in a couple of months, so take a good look at who are the defenders of freedom and progress, and who are its enemies.

  • Not true... if he had addressed the constitutional issue, then the "Free speech" or "freedom of the press" arguments would have won out, easily.

    Admittedly, there's a bit of "this is stupid" in his tone as I read it as well, but he definitely doesn't seem inclined to want to be the person to rule the DMCA unconstitutional. Damn pussy. ;-)

  • In the idea you describe, Sony's DVD player still wouldn't be breaking the act, because it still wouldn't fall to one of the three categories (primary purpose is circumbention, limited commercially significant non-circumvention purpose, or marketed for circumvention).

    I put a CSS-protected movie into the machine, and unscrambled unprotected plaintext video comes out through the video-out jack. To me, that sounds like a device whose primary purpose is to circumvent. That's exactly what the machine does. Furthermore, the Sony DVD player has limited commercially significant non-circumvention purpose: do you think many of them would be sold if they couldn't play CSS-protected movies?

    I'm pretty sure that the MPAA's position is that the Sony player does circumvent, but that it has authorization, and DeCSS does not have authorization. If they take the position that the Sony player does not circumvent, then how could they argue that DeCSS or Livid does circumvent?

    BTW, for reference, DMCA says:

    To 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure
    (I don't see how that helps either of our arguments, but I guess we should keep the definition in mind as we discuss this.)
    ---
  • Look up "circumvent".
    From DMCA:
    To 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure

    I'm not sure if we're just quibbling over words or what, but isn't that exactly what all DVD players must do, in order to get plaintext out of a DVD?


    ---
  • But watching a DVD isn't the same as circumventing the protection on a DVD.

    Huh? If the protection hasn't been circumvented, then I wouldn't have unscrambled plaintext, and my TV would display snow.


    ---
  • Tsss.... Norway is not an opressive country. From what I know, their government have even oficcially said it is sorry for the original traitment of him... He won't be extradicted. But he better not plan a tripp to the US any time soon...
    --The knowledge that you are an idiot, is what distinguishes you from one.
  • They picked on DeCSS because the DCMA says that technology designed to circumvent copy protection encryption is now illegal. DeCSS is designed to break the encryption and decode the data. Therefore DeCSS is the illegal component.

    --
  • If you read the entire judgement rather than just the conclusion, you will find that DeCSS allows an encrypted DVD to be turned into an unencrypted data file. This unencrypted data file can be compressed using DivX to a file size small enough to fit onto a writeable CD. It was shown that these unencrypted and compressed files were already being openly traded over the 'net. This unfortunately lumps DeCSS into the heading of 'piracy-assisting technology', rathern than what I truly believe it was developed for - just a method of extracting fair use from a product whose manufacturers were trying to unfairly control and extort their market.

    --
  • Indeed, Judge Kaplan clarifies his position with the following statement:

    "The policy concerns raised by defendants were considered by Congress. Having considered them, Congress crafted a statute that, so far as the applicability of the fair use defense to Section 1201(a) claims is concerned, is crystal clear. In such circumstances, courts may not undo what Congress so plainly has done by "construing" the words of a statute to accomplish a result that Congress rejected. The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress' decision contravenes the Constitution"


    --
  • The only problem with releasing 'just a DVD player' within the Linux/Open Source community is that it IS an Open Source community. People would just download the source of your player, modify it to allow saving of the unencrypted movie, and re-release it back to the community again.

    Either way this argument is moot. The DeCSS source was already released to the community.

    --
  • The lawyer representing their clients did not make their case well enough to overcome the misstaken assumtion that reverse engineering has malicious intent.

    Would that have actually had a bearing on the case, I wonder? What is being claimed is that DeCSS is in violation of the DMCA. As far as I understand it, the DMCA states that any method of circumventing a commercial encryption scheme is illegal. It doesn't make provision as to whether the circumvention was malicious or not.

    --
  • But VCR copying is currently protected under fair use doctrine. Digital technologies have just had that right revoked by Congress through the DMCA. Hence, VCR technologies and the like now have no bearing on this case.

    --
  • Can regular courts rule a law unconstitutional? I thought that only the Supreme Court could do that? This is an honest question coming from a Limey living in the U.S.A.

    --
  • It is air. But it is also a sense and feeling of the pulse of the community. It is typical for semi-legal and illegal activities to be driven underground when there is a crack-down in enforcement. This ruling does not directly change enough of the internet (it prohibits 2600 and some related sites from offering or linking to offers to provide DeCSS) to have any effect on reducing or eliminating the availability of DeCSS or the motion pictures that are the legitimate concern of the MPAA. It's all available domestically and beyond, and still will be. It will hide. It will move. But there will be more looking for it. And that won't be enforcement (because they don't have enough of a clue to go find it).
  • The special hardware is available. It just isn't cheap. Those involved in mass production operations have it. I've heard some lower cost figures on this, but don't have a way to verify it at the time. So far we have heard nothing about the DeCSS pursuing these "pirates".
  • Read the DMCA in the context of other laws, not in isolation.
  • I do not have to reverse engineer anything to access. The reverse engineering was done where no law against it exists. What we have in the USA is a tool. That tool allows me to examine what I own. Through its infinite ignorance, the DMCA omitted this and fair use still applies.
  • Why do you say it is impossible with Windows? How well have you tried it?

    Quality is ubiquitous. We already use compression to "ruin" quality and people are still happy with it. Nth generation VHS duplicates had, and probably still have, a huge underground market. The digital age changes that even if you have to capture it from the analog video outputs. You have one generation of quality reduction there, but no more after that.
  • I realize that this is offtopic, but it is EXTREMELY important so I'll sacrifice Karma for it. The Electronic Frontier Foundation has been supporting this case entirely. They hired Mr. Garbus and have footed the bill for this trial since 2600 can't afford to.

    If you have *any* feelings about the DMCA and the effect that it has on all of our lives, please go to the EFF Site and Donate Now [eff.org]! I just gave them $100 on top of my annual membership fee of $65. They appreciate your moral support against the MPAA but, what they really need at this point is cold, hard cash!. The MPAA has really deep pockets and can spend years in court.

    Help the EFF fund this appeal and overturn the DMCA before they fuck us again like they are doing with other Un-Constitutional laws like UCITA, COPA, and the original CDA.

  • I'm Infected [njit.edu]

    the spread of different kinds of disease.212 In a common source epidemic, as where members of a population contract a non-contagious disease from a poisoned well, the disease spreads only by exposure to the common source. If one eliminates the source, or closes the contaminated well, the epidemic is stopped. In a propagated outbreak epidemic, on the other hand, the disease spreads from person to person. Hence, finding the initial source of infection accomplishes little, as the disease continues to spread even if the initial source is eliminated.213 For obvious reasons, then, a propagated outbreak epidemic, all other things being equal, can be far more difficult to control.

    This disease metaphor is helpful here. The book infringement hypothetical is analogous to a common source outbreak epidemic. Shut down the printing press (the poisoned well) and one ends the infringement (the disease outbreak). The spread of means of circumventing access to copyrighted works in digital form, however, is analogous to a propagated outbreak epidemic. Finding the original source of infection (e.g., the author of DeCSS or the first person to misuse it) accomplishes nothing, as the disease (infringement made possible by DeCSS and the resulting availability of decrypted DVDs) may continue to spread from one person who gains access to the circumvention program or decrypted DVD to another. And each is infected, i.e., each is as capable of making perfect copies of the digital file containing the copyrighted work as the author of the program or the first person to use it for improper purposes. The disease metaphor breaks down principally at the final point. Individuals infected with a real disease become sick, usually are driven by obvious self-interest to seek medical attention, and are cured of the disease if medical science is capable of doing so. Individuals infected with the disease of capability of circumventing measures controlling access to copyrighted works in digital form, however, do not suffer from having that ability. They cannot be relied upon to identify themselves to those seeking to control the disease. And their self-interest will motivate some to misuse the capability, a misuse that, in practical terms, often will be untraceable.214

    These considerations drastically alter consideration of the causal link between dissemination of computer programs such as this and their illicit use. Causation in the law ultimately involves practical policy judgments.215 Here, dissemination itself carries very substantial risk of imminent harm because the mechanism is so unusual by which dissemination of means of circumventing access controls to copyrighted works threatens to produce virtually unstoppable infringement of copyright. In consequence, the causal link between the dissemination of circumvention computer programs and their improper use is more than sufficiently close to warrant selection of a level of constitutional scrutiny based on the programs functionality.

  • Jeez, calm down man. You're blatently wrong in that you think you need to decrypt in order to copy. If you copy the entire disk, byte for byte, you've made a copy that will play in any DVD player. Simple.

    And yes, you can get the session key. Otherwise you wouldn't be able to play the damn thing, would you?

    ---
  • They may have deeper motives, but the obvious way to argue the case is that CSS is not a copy protection system. I have no idea how easy that is to show to a non-programmer, but it's fairly obvious to any computer professional.

    ---
  • What the Linux 'community' should do is produce a DVD player that uses DeCSS to simply play a DVD on a Linux PC, with no 'Save to File' or other obviously abuseable options. Until that is done, you don't really have a leg to stand on.
    Oh, please. "Obviously abuseable options" to one person are intrinsically useful to another. The Microsoft-perpetuated standard of childproof, underpowered software is fine for users, but if it begins to be mandated by law then there's something seriously wrong..

    Plus, as far as I'm aware, the only use that DeCSS is put to is to rip DVDs and recompress them in DiVX format.
    Troll originality: 2/10
  • Anyone had this thought yet, to turn the Kaplan ruling into a DeCSS program?

    It could be done by creating a new machine and language that does CSS-decryption, using the official PDF for both code and data? The grammar would be horrible, of course, but what can you expect from legaleese? .-)

    If nothing else, it might be an interesting project to persue. Humm...

    "Here you have the specification for our Kaplan-machine and our Kaplan-language, now download the official ruling and decode some VOBs you evil hacker!"

    /%/)+Eddy

  • Remember the 'other' DeCSS? Now you, too, can host DeCSS files on your site! And without fear of legal action! click here [threadnet.com] to confuse the MPAA!

    __________________________________________________ ___

  • But over-ruling the DMCA was certainly not his job.

    The Supreme Court of the United States disagrees with you, as does the vast majority of Constitutional scholars in this country.

    Any and every Article III Judge in the United States (and Kaplan is one) has a Constitutional duty to see that the law of the land is upheld.

    The nation's highest law is the Constitution. It is therefore the required duty of all Article III judges to review laws which come before them for Constitutionality.

    Right. Thanks for the clarification; I *think* I have relocated my brain now. :-) Indeed, the decision points out that because this was the first constitutional challenge to the DMCA, that he would not award legal fees to the plaintiffs, although he could have, under the law as it was written.

    On the other hand, a lot of the decision was about the applicability of the DMCA to the case of computer code as the access control mechanism, and other minutia of this case, and I would not suspect that it would have been entirely kosher for Kaplan to have made any broad ruling about the act beyond the parts he decided were relevant to this case. So some other slashdotters points about potential problems with the DMCA probably didn't come up (this wasn't the case for it) or weren't considered relevant (ditto).

    But I do stand by my statement that it was the fair use angle rather than anything else that Kaplan found most potentially worrisome about the DMCA.

  • . It is also interesting to say that the current framework is one that protects and harbors a monopoly.

    Why is that interesting? Copyright is pretty much by definition a monopoly. A legally granted monopoly, but a monopoly nonethless.
  • "Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located."

    This idiotic statement will come back to haunt the judge.

    The information is already available to the defendants--through a normal DVD player. And not "without charge"--they purchased the disk with data included. To imply (no, to rule) that I can't view my own DVDs on the player of my choosing is so antithetical to the real purposes of copyright and fair use that....I can't even finish that sentence.
    --
  • by Jeremy Erwin (2054) on Thursday August 17, 2000 @09:40AM (#848558) Journal
    "Mr. Johansen is a very
    talented young man and a member of a well known hacker group who viewed "cracking" CSS as an
    end it itself and a means of demonstrating his talent and who fully expected that the use of DeCSS
    would not be confined to Linux machines. Hence, the Court finds that Mr. Johansen and the others
    who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player
    if, indeed, developing a Linux-based DVD player was among their purposes.
    Accordingly, the reverse engineering exception to the DMCA has no application here."

    I wonder what the application to LiVid will be.
  • by pergamon (4359) on Thursday August 17, 2000 @10:40AM (#848559) Homepage
    exactly.

    it is already possible to copy the media bit for bit and write another copy of DVD to play in any normal DVD player (i don't keep up with DVD writable stuff, but if that capability isn't already there, it will be). all that the encryption protects against is:

    a) playing the media with DVD equipment/software that is licensed and has a decryption key.

    b) getting perfect copies of the video contained on the DVD (most DVD players have digital out, so we could get that anyway -- granted, in some cases the precision/bitrate coming out the digital outs is not as good as is actually stored on the DVD). right now, we can *still* get pretty good copies
    of the video just from SVideo capturing or, if such a way exists, capturing from the component outs of any higher-end DVD player.

    SO. the encryption does *nothing* to limit/restrict/hinder copying of the DVD movies themselves. they can put all the encryption they want on it, joe blow pirater can still rip the DVD and put it on a website for others to download and burn their own copies. about all that it prevents is repackaging the video/audio, or using perfect copies of the video in some other context other than the movie. how much could that matter in comparison to the DVD sales which is not impacted by the encryption?

    so that doesn't seem like a viable reason for them to make all this up (am i missing something on that angle??).

    so, and i'm certainly not the first to point this out, it seems that all they're protecting is the DVD player makers.
  • by Zagadka (6641) <zagadka@x e n omachina.com> on Thursday August 17, 2000 @09:58AM (#848560) Homepage
    Even a foolish idiot wouldn't make such a spurious claim.

    That's essentially the claim that most of the "information wants to be free" crowd uses though. They say it's mathematically/physically impossible to prevent people from copying the data, so there shouldn't be laws against it. In other words, "information should be available without charge to anyone clever enough to [get it]". Yeah, they probably wouldn't use the term "break into" (like thge ruling), but rather somethiung that means the same thing but sounds more benign...

    Now before I get flamed, I should point out that I don't agree with the ruling. (oh, and IANAL) I think the DMCA goes way too far. I think that copyright protection doesn't need legal protection. Copyright alone should be enough. If people use DeCSS to illegally copy DVD's, then go after them. People using DeCSS for fair use aren't doing anything wrong. So in other words, DMCA is unnecessary, and makes things illegal that shouldn't be.

    Unfortunately, because of the boneheaded way American law works, once a law is passed, you pretty well can't get rid of it unless you can prove that it's "unconstitutional", and likewise, you can't create laws that conflict with the constitutional dogma...

    Let the flaming begin!
  • by jetson123 (13128) on Thursday August 17, 2000 @11:58AM (#848561)
    You are putting up a strawman. Reality is that copyright legislations has strongly restricted access and use of information since the 19th century, and that at the end of the 20th century, technology is being used to make a mockery of even the limited fair use provisions copyright law still had left.

    People in a democratic society need to be able to exchange information. A vibrant culture needs artists that can build on each other's work and that can reuse cultural icons (as we know from several hundred years of experience with the arts and culture in Europe). A society and culture in which every bit of information and every cultural icon is owned in perpetuity by corporations with specific financial interests and concerns about their "brand image" is a dead end.

    It is this tradeoff that is at the core: should we put corporate profits over the interests of our society? Or should we be conservative and return to the roots of copyright law: to fair use provisions that allows individuals to use content, build on each other's ideas, and reproduce content for scientific and analytical purposes, and to limited (20-30 years) protection?

    To me, the answer is pretty clear. Kaplan is right that this needs to be done by the legislative branch, not by the judicial branch of government, but without a serious political finance refort, that is unlikely.

  • by ethereal (13958) on Thursday August 17, 2000 @09:49AM (#848562) Journal

    It looks like this judge is ruling merely on the merits of the DMCA as passed by Congress, rather than considering the larger question of whether the law is constitutional. Perhaps at this level of the legal system the judiciary is unwilling (or unable, IANACS (constitutional scholar)) to overturn a federal law as unconstitutional. I think it was pretty clear on the basis of the past few months activities that this case would go against the defendants.

    The DMCA itself is bad enough, but the upholding of an injunction against the defendants linking to freely available information (well, at least until the hosting sites are also sued) is really troubling. I hope that facet of the case is an important part of the appeal as well; otherwise the New York Times and other major news venues will have to watch what they link to. If linking to a site with controversial content is prohibited, how about linking to a site that does the linking? For that matter, how about linking to AltaVista?

    This ruling represents an unconscionable attack on the underpinnings of the Internet. The powers-that-be have won the first battle to halt the changes that are coming to the world they own; I hope that the EFF, Mr. Garbus, and other people of good will are able to win the war for freedom of information and the right to free speech online, even if it does hurt someone's bottom line.

    </soapbox>

  • by drenehtsral (29789) on Thursday August 17, 2000 @09:34AM (#848563) Homepage
    This is to be expected, infact from what i've read, the EFF and company were even counting on this. This sets the stage for a constitutional challenge, which will set precedent on a national level.

    Disclaimer: I'm not a lawyer, nor do i play one on television =:-0
  • by Pont (33956) on Thursday August 17, 2000 @08:04PM (#848564)
    Am I breaking the law if I read out load the DeCSS code?

    If DeCSS was pseudo-code, would it be protected by the first ammendmant? What if it were written instructions?

    If I rename decss.c to decss.bmp (which would probably look like noise), print it, and frame it, is it art? If I print it large enough, a scanner and the right software could compile it directly off the bitmap (just change the lexical analyzer to recognize a series of dots instead of a byte corresponding to an ASCII value).

    Basically, I'm saying that source code should obviously be protected free speach. The instructions for making a bomb (including measurements, chemical mixing, and all) have already been established as protected free speech. So obviously, an english step-by-step instructional essay on how to break CSS would be protected free speach. Source code is just a form of shorthand for writing a limited set of instructions that a compiler can then translate into code a computer can understand. The DMCA is saying we cannot shout, "the emperor has no clothes."

    *idea*: Write a perl script that translates C code into English that can always be perfectly re-translated back to C code. Maybe run that through a speach synthesizer or read it. Let's see the courts say that isn't speach.
  • by MadAhab (40080) <slasher@@@ahab...com> on Thursday August 17, 2000 @10:29AM (#848565) Homepage Journal
    Was it in reality a big deal, or actually bias his views? No.

    Do lawyers and judges routinely remove themselves from cases to avoid even the mere appearance of impropriety? Yes. Should this judge have? Yes.

    Does he give the appearance in general of being biased against the defendants for ideological reasons? Yes. Does he give the appearance of being personally biased against the defense team? Yes.

    Kaplan's behavior will be a liability to the plaintiffs in appeal for plenty of good reasons, even if his former law firm's role in advising Time Warner on issues germane to the case isn't itself the best reason.

    Boss of nothin. Big deal.
    Son, go get daddy's hard plastic eyes.

  • by Myddrin (54596) on Thursday August 17, 2000 @09:41AM (#848566) Homepage
    It's pretty clear that the judge from the begining has seen the programmers as a bunch of punk kids. The legal treatment of those involved has been amazingly shoddy. I could see the judge being disbarred for this, he oversaw the trial even though he'd been a consultant with the MPAA just a few years ago.... Yeah, they give him a large sum of money and he's supposed to be un-biased???

    It's appeal time.
  • by Nehemiah S. (69069) on Thursday August 17, 2000 @10:06AM (#848567)
    Unfortunately, because of the boneheaded way American law works, once a law is passed, you pretty well can't get rid of it unless you can prove that it's "unconstitutional", and likewise, you can't create laws that conflict with the constitutional dogma

    It's pretty easy to get rid of a law once it's been passed. You just bury a rider 500 lines deep in a budget bill that says "The DMCA is hereby repealed", get both houses to sign off on it, and start watching movies on your platform of choice.

    IANAL BIRA LOS (I am not a lawyer (but I read a lot of Slashdot)).
  • by Ryu2 (89645) on Thursday August 17, 2000 @09:40AM (#848568) Homepage Journal
    Remeber this: It's the judge's purpose, and only purpose here, to decide whether or not DeCSS runs contrary to existing law (the DMCA). In light of this, he did his job perfectly, with his decision.

    It is NOT his purpose to decide whether that existing law is bad or not, and his own views regarding the law itself should not be relevant to the task at hand. So, protest the law, not the judge.

  • by Rand Race (110288) on Thursday August 17, 2000 @11:17AM (#848569) Homepage
    I found that section telling as well. Funny that he used examples that were so horribly flawed. If DeCSS is really like 'assaination of a political figure', then by all means DeCSS code should be banned just like guns are. And if DeCSS is like viruses that can 'disable systems upon which the nation depends' then yes, DeCSS should be banned just like VisualBasic is.

    Of course personal responsibility, the basis of a free society, takes a distant back seat to corporate greed these days.

  • by YU Nicks NE Way (129084) on Thursday August 17, 2000 @09:42AM (#848570)
    That's as close as I've ever seen an opinion come to "Congress, this is a stupid law, and you should fix it -- but, given that it's Constitutional, there's nothing I can do about it."
  • by streetlawyer (169828) on Thursday August 17, 2000 @11:08PM (#848571) Homepage
    ... he just decided that source code is not worthy of Constitutional protections.

    No, he decided that source code was worthy of Constitutional protections, and said so, very plainly in the ruling. However, Constitutional protections do not rule out content-neutral regulation of "expressive actions", if the public benefit of regulating the "action" outweighs the restriction which is thereby put on expression. Since the DMCA does appear to fit into this category, it is Constitutional in this sense. He noted that the "fair use" argument was stronger, but decided on balance that CSS did not sufficiently impair fair use to render the DMCA's application in this case to be unconstitutional.

  • by EricEldred (175470) on Thursday August 17, 2000 @03:05PM (#848572) Homepage

    I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD...

    It only takes a little money and the cooperation of one DVD mastering and manufacturing company.

    Create 4.7GB of Free Software (including, of course, DeCSS.c). Encrypt it with the CSS algorithms derived from the DeCSS reverse engineering. Prominently display a copyright notice, together with a license that the only way the disc can be used is with DeCSS. Supply DeCSS and necessary other viewing programs on an accompanying floppy. Take it to a friendly DVD manufacturer. Print up a license and contract to go with it. Have all the Linux distros sell it online.

    The point is, DeCSS does decryption--but so does any CSS implementation. Obviously, in this case, DeCSS would be doing it with the consent of the copyright holder--the Free Software Foundation and all the other copyright holders on the DVD.

    Yes, the MPAA and the DVD-CCA will not like this. So they sue. On what grounds? It could only be on trade secrets--but that is a loser--they would have used that in New York if they thought it would win. They use Judge Kaplan's decision, that distributing DeCSS is illegal? But where in his decision does it say that it is illegal to distribute and decrypt a copyrighted work with the authorization of the copyright holder?

    I am really offended by Kaplan's decision. It almost libels the Free Software movement. If it is allowed to stand, then the liberty of all of us using computers and the Internet is in question. Even reporting the code to a virus would be illegal, according to his way of thinking.

    Fairly soon, we will think about using the expanded storage power of DVDs to record computer data. It is time we made sure that we will be free of the monopoly on DVDs by Hollywood. They don't want us to produce content--they want to rent us content on pay-per-view.

    I'm willing to donate money and help for this project. Anybody else?

  • by ichimunki (194887) on Thursday August 17, 2000 @12:28PM (#848573)
    If you had actually read the ruling, or even to about page 50, you would have found repeatedly mentioned the fact that our beleaguered defendents here are on trial for trafficking in encryption circumvention technology, not for piracy, copyright infringement, or aiding and abetting such infringement. The specific section of the DMCA that is at question is noted several times both by reference and at least once in quotation. You would have also gotten to an entire portion of the essay devoted to this question. In fact, had you, Stary, invented DeCSS for your own personal use on a Linux system and decrypted every DVD you could buy, you would likely have found Kaplan's ruling in your favor, since he clearly seems to think this would have been acceptable.

    The judge is convinced that the emergence of the decss.exe binary for Windows machines and it's "disease"-like spread (yes, I love where he compares internet file sharing to disease transmission) undermines any verity to the claim that this is a Fair Use issue at least for these defendents.

    Personally I think the DMCA is a great reason to never vote for any Democrat or Republican again. I had gone to great trouble to find links to all the Congress members who voted for this, but the Senate link was session-based (it was a unanimous "yea", btw), and the House had a voice vote, which seems to have prevented a voting record from being made.
  • by Skapare (16644) on Thursday August 17, 2000 @10:08AM (#848574) Homepage

    The judge was, however, confused by MPAA rhetoric about the distinction between copying and merely accessing. There is no law against accessing what you already own. DeCSS is a tool for accessing, not copying. When used for accessing the information you already own a legitimate copy of, then its use is legal in that no law exists to prohibit it.

    The MPAA is relying on misinformation to win this. You can see the misinformation in every statement they make where they claim DeCSS allows copying. As you should know, DeCSS allows access to bypass the encryption. But a DVD player does that, too, with very slightly less quality.

    The mere fact that we accept lossy compression means we accept less that perfect reproduction as long as that reproduction does not continue to degrade. I could frame capture a DVD movie from a DVD player, re-digitize it, and it will be somewhat less quality than the original, but the digital copy will not degrade any further. That copy could then be illegally distributed and it would remain at that quality level throughout the entire tree of distribution.

    Likewise, the originally encrypted version can be duplicated, and you end up with a perfect copy with the encryption intact. The encryption still means you have to decrypt it, but you now have a mechanism whereby the movie producers are not rewarded for their efforts, and DeCSS is not even involved in this. Copying can be done without DeCSS.

    DeCSS has a legitimate purpose (viewing what one already owns by having legally purchased it and rewarded the movie producers), and does not significantly contribute to illegitimate purposes (since it is possible to access acceptable clear copies, as well as make duplicates of the encrypted copy, all without DeCSS). The facts of this case are that the facts have been manipulated by the MPAA.

    I am not a supporter of piracy. If the MPAA had a legitimate desire to prevent piracy, they would focus on the piracy that takes place, rather than focusing on a tool that allows them to discriminate against me because I choose to not use crappy software from Redmond Washington. Sadly, the court victory means nothing because it won't stop or even reduce piracy. Mostly likely piracy will go up, and I would not be surprised if it triples or more. And in the mean time lots of people like myself will be boycotting not only DVD movies, but all movies produced by MPAA members. It's time to check out your local art theatre or maybe even a real stage play.

  • by King Babar (19862) on Thursday August 17, 2000 @10:09AM (#848575) Homepage
    I followed this case kind of closely, and I don't remember even a shred of the DeCSS defense revolving around the argument that intellectual property should be free to all. The strongest DeCSS argument, in my opinion, was the one that the reverse engineering was specifically legal because it allowed the content to be played on platforms for which there was not a "legitimate" player.

    I don't think the defense made that statement in court, but the plaintiffs were able to convince the judge that this was, in fact, the case.

    Moreover, if you read the judgement (nobody much here seems to have done this, however), Judge Kaplan thought the strongest aspect of the defendent's case was not the "legitimate player" aspect per se, but the possibility that the situation without the availability of DeCSS would prevent fair use of the copyrighted works encrypted under CSS. Indeed, Kaplan points out that this kind of argument was one of the biggest controversies involved in the passage of the DMCA, and that the act is a compromise of sorts. But over-ruling the DMCA was certainly not his job. Kaplan's job was to decide whether the DMCA would apply in this case (it did), and if the plaintiffs were entitled to any damages if the DMCA had been violated (it was violated, but all he gave them was court costs rather than attorneys fees).

    The presumed appeal here won't be on the facts of whether or not the DMCA was the correct statute to use to grant a permanent injunction on the posting of DeCSS , but whether the "compromise" to fair uses of copyrighted work posed by the DMCA is, in fact, unconstitutional. That would be a much more interesting case, but not the case the judge was in any position to decide.

    Well, I think so; I am not a lawyer. I'm crossing my fingers that Doc Hawke, Esq., will post something more informative on this.

  • by jslag (21657) on Thursday August 17, 2000 @09:42AM (#848576)
    I mean, look at this stuff...


    Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.


    While there certainly are those on the DeCCS side who may come off this way, it misses the issue by a mile. DeCCS doesn't "break into. . .computer systems", it plays back media! Nothing in DeCCS makes it easier to illegally use DVDs, unless viewing DVDs is in and of itself illegal in some way (now I guess it is).


    For people paying attention to the trial, is this misunderstanding due to a bad job by the defense lawyers, or is the judge just an idiot?

  • by Ralph Wiggam (22354) on Thursday August 17, 2000 @10:13AM (#848577) Homepage
    The judge was NOT a consultant for the MPAA. A lawfirm he was somehow associated with employed some lawyers who did some consulting for the MPAA. I was furious when I first read that, but after some research I found out that it really wasn't a big deal.
    Did judge Kaplan miss the point? Yeah. Was he biased? No.

    -B
  • by kaphka (50736) <1nv7b001@sneakemail.com> on Thursday August 17, 2000 @10:19AM (#848578)
    So am I breaking the law if I wear my DeCSS shirt tomorrow?
    As far as I can tell, the answer is yes.

    I don't find that funny.
  • by Cy Guy (56083) on Thursday August 17, 2000 @11:54AM (#848579) Homepage Journal
    It is bizarre that a judge would include in his conclusion statements about the beliefs of plaintiffs and defendants. Isn't the whole point of blind justice that decision is made based on actions, not the personal beliefs of those who act?

    The judge indicates that he clearly took into account the intent of 2600 to distribute DeCSS to be used for other than fair use. Also, he cites there posting of links to DeCSS to another example of 2600's intent to get other to not only download DeCSS but to use to rip DVDs for other than fair use.

    Intent (ie the belief of the defendant/s) has always been a necessary element of proving a crime has been committed. That is why when you kill someone in an auto accident while obeying the traffic laws, you are not considered to have commited murder or even manslaughter, since you had no intent to kill anyone. (if you were violating other laws then you may be convicted based on extreme negligence, but that is a whole seperate story).

    What I fail to understand, is that the judge comes to the conclusion as to the intent of the original author of DeCSS, aparently soley on the basis of MPAA testimony. The author wasn't on trial, but his intent is crucial in finding that the primary purpose of DeCSS was to violate copyright protection, rather than to enable fair-use.

  • by MattW (97290) <matt@ender.com> on Thursday August 17, 2000 @09:49AM (#848580) Homepage
    Indeed, and I think the summary nicely reveals that clearly the point that people buying a DVD have a right to view it as they please has not been made. However, this is unsurprising, as this was actually a predicted result when the DMCA was being considered as law. If a poor precedent is set, expect the DMCA to protect any and all information with enough lawyers. Why even encrypt with a key? They could have xor'd the content against a 16bit key, and sued just the same.

    I'm going to take the time and write my legislators about repealing the provisions of the DMCA which enact the absurd restrictions on reverse engineering encryption systems, just because they protect copyrighted works. The criminality of that activity should require a burden of proof that it was intended for the illegitimate access to the protected work.
  • by EricEldred (175470) on Thursday August 17, 2000 @06:18PM (#848581) Homepage

    Hey, Ketzer, thanks for the "explanation" but it is even worse than Kaplan's decision. How you got a "2" for "Informative" is beyond belief.

    No, because it doesn't have to say that. Just like guns don't have to say "don't shoot people!" on them, because it's already the law.

    So guns are now illegal?

    You didn't buy a movie, you bought a DVD. Nobody signed over ownership of the information contained on the DVD to you. So you don't have the right to do whatever you want with it.

    Well, I say I did buy it and I claim I have those rights. Show me the piece of paper that proves you are correct. You refer to some "license" I never saw nor heard of, even from Kaplan.

    In the case of VHS, they license you to view it under certain conditions, and if you view it under different conditions (like in a big movie theater with 1000 "friends" who paid to get in) then you are breaking the licensing agreement.

    No, you might be breaking copyright law (it depends on what the copyright owner agrees to, when it comes to redistribution--it is not always illegal--look at the GPL for example). However, in some "license" (but not with DVDs) a copyright owner might try to restrict you from making a backup copy. In that case, you need not comply with the license, because that is unconstitutional.

    In the case of DVDs, those conditions are a bit stricter, in the sense that they restrict the method of viewing to a licensed viewer.

    Who says? I never made a contract or bought a license from the DVD-CCA.

    The legal difference is that for VHS, the conditions are determined by Fair Use laws, which say what conditions you are allowed to copy or view the info.

    There are no "Fair Use" laws, there are only copyright laws, and DMCA is part of the same Title 17 now. There is no difference between VHS and DVD. Both have Macrovision, and both try to keep the user from exercising fair use rights of copyright law.

    DCMA makes it illegal to break that encryption,...

    DMCA (not DCMA) doesn't make it illegal to "break that encryption." If that were true, any playing of a DVD in a player would be illegal, because every player has to decrypt the scrambled files.

    which protects information owned by the movie studio.

    There is no "property owned by the movie studio." The movie studio has certain statutory rights for a limited time. But the purchaser of a DVD owns the DVD and can use it, view it, decrypt it, resell it, put it under a scanning electron microscope to examine the pits on the disc, play it on her dishwasher, use it to shingle the roof, or whatever use she wants, after she has bought it. There is no license, no different law for DVDs than for other digital or analog content under copyright law.

    it's a crime to break it and take their info.

    Yeah, this is the "crime" that the MPAA accused 15-year-old Jon Johansen of, "breaking into" his own computer and "taking their info" so he could play the DVDs that he purchased on his own computer (GNU/Linux).

    So you want to lock this kid up or give him a medal?

  • by Alien54 (180860) on Thursday August 17, 2000 @10:40AM (#848582) Journal
    From page 79 and 80 of the ruling:

    "The other concern--that a liability based on a link to another site simply because the other site happened to contain DeCSS or some other circumvention technology in the midst of other perfectly appropriate content could be overkill--also is readily dealt with. The offense under the DMCA is offering, providing or otherwise trafficking in circumvention technology. An essential ingredient, as explained above, is a desire to bring about the dissemination. Hence, a strong requirement of that forbidden purpose is an essential prerequisite to any liability for linking.

    Accordingly, there may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.

    Such a standard will limit the fear of liability on the part of web site operators just as the New York Times standard gives the press great comfort in publishing all sorts of material that would have been actionable at common law, even in the face of flat denials by the subjects of their stories. And it will not subject web site operators to liability for linking to a site containing proscribed technology where the link exists for purposes other than dissemination of that technology.

    In this case, plaintiffs have established by clear and convincing evidence that these defendants linked to sites posting DeCSS, knowing that it was a circumvention device. Indeed, they initially touted it as a way to get free movies, and they later maintained the links to promote the dissemination of the program in an effort to defeat effective judicial relief. They now know that dissemination of DeCSS violates the DMCA. An anti-linking injunction on these facts does no violence to the First Amendment. Nor should it chill the activities of web site operators dealing with different materials, as they may be held liable only on a compelling showing of deliberate evasion of the statute."

    So it seems that while 2600 is enjoined from linking to DeCSS, others not yet named have not been, yet. The MPAA will have to go after each one individually. This will be easier now that this decision has been made.

    Obviously a first victory for the money interests. a shame that the dvd script kiddies who had to go trading these things around screwed it up for the rest of us.

  • by Luminous (192747) on Thursday August 17, 2000 @09:36AM (#848583) Journal
    Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.

    I may be way off course here, but I don't believe the defendants would ever make the argument as stated above. Even a foolish idiot wouldn't make such a spurious claim. The fact this judge has interpreted the argument in this fashion implies a clear biased.

    I am not making a comment on the ruling as a whole, just this judge's view of the defendants. It is also interesting to say that the current framework is one that protects and harbors a monopoly.

  • by Quietust (205670) on Thursday August 17, 2000 @09:38AM (#848584) Homepage
    Zarn: there was an extra / at the end of the link.
    Try this [mud.nu] instead.

    -- Sig (120 chars) --
    Your friendly neighborhood mIRC scripter.
  • by zenith744 (210415) on Thursday August 17, 2000 @09:38AM (#848585)
    in case the link on the front page is /.ed, here is a link to the nytimes article [nytimes.com]. I like the part where "...He noted that the DeCSS computer code that unlocks the software designed to protect DVDs from being copied is like computer viruses which can ``disable systems upon which the nation depends.'' Really! I guess I better update Norton Antivirus and get the definitions for this new and very very evil DeCSS virus...it could destroy EVERYTHING!

  • by nathanh (1214) on Thursday August 17, 2000 @11:05AM (#848586) Homepage
    but keep your motives pure, no winking, no smirking, and you'll be better off at the showdown. The judge is not necessarily your enemy, but he will be if he thinks you're a smartass. Start by taking off that T-shirt.

    Whether intentional or not, your entire post comes across as condescending. The belief that somehow this is a "lesson to all the kiddies" is demeaning and manages to portray the idea that all the people involved were naive and ignorant imbeciles.

    The defendant, the 2600 website operator, was a 40+ year old journalist. Not a punk kid.

    Experts for the defence included 50+ year old Professor Touretzky. Not a punk kid.

    The defence lawyers have 20+ years experience and have acted seriously from the start.

    But the point you raised which annoys me the most...

    Defendents are adherents to a movement believes that if you "buy" the DVD at the store ... you should be allowed to do whatever you want with it, exclusive of giving copies to other people.

    You haven't even bothered following the case else you wouldn't even make this stupid claim. The defendants never once argued along this line of reasoning that "information must be free". I don't believe that rot, and clearly the defence and the defendants didn't either.

    This case is far more chilling than the lame need to watch hollywood movies. What the judges decisions effectively says is that an encrypted material cannot be decrypted without the author's consent. This has far-reaching implications not for DVDs or even movies. This has the potential to destroy Linux and open source itself. Imagine your next video card has the GPU microcode kept in encrypted flash: you can't even use the card without using the vendors drivers unless you want to circumvent the encryption method. This means the DMCA allows vendors to prevent open source drivers from being traded and improved.

    I think you've done a great disservice with your post. Not only did you trivialise the entire defence, implying that they were just a bunch of unruly "punk kids" who were giggling and swearing while acting disrespectfully to the court, you also manage to completely misunderstand what has happened here and why it is so important.

  • by cpt kangarooski (3773) on Thursday August 17, 2000 @09:59AM (#848587) Homepage
    Their legal footing is this (IANAL):

    1) The first amendment DOES permit the publication of potentially dangerous information or instructions. This has been upheld by the Supreme Court for quite some time (at least since the case in which a magazine published instructions for nuclear weapons construction in the 60s -70s)

    No, you can't say "Let's go kill Brian Adams, right now" but you can say "Brian Adams will be the first against the wall when the revolution comes." One is an immediate incitement to an illegal act. The other is not - it's protected speech.

    And source code has been found in a different circuit to be protected speech, and once a case involving that idea gets to the Supreme Court it's likely to be upheld there too - why should VERY PRECISE speech be less protected than vague speech? It's not impossible to program a computer in English, if you're clear and write an interpreter.

    2) The MPAA members are illegally using their copyrights to acquire and keep a monopoly on DVD players. The traditional remedy, as I have heard, is to invalidate the copyrights being used in this manner until such a time as they are no longer being used for illegal activities.

    The Judge (whose firm has consulted for the MPAA on antitrust issues in the past - which is why he probably should not have been involved with this case) quickly decided that the DMCA overrides antitrust law (it plainly doesn't and the Congressional record is clear on that over and over again) and refused to hear arguments along those lines.

    3) Fair use is being circumvented by the DMCA, but fair use is a right which for over a hundred years was found by courts high and low to be more fundemental than copyright. While Congress has since explicitly enacted laws protecting fair use, they are constitutionally unable (so sayeth the courts) to get rid of it.

    But Kaplan let himself be fooled by the MPAA who claim that fair use still exists, even though you can't actually exercise it.

    4) The MPAA never showed any harm, which is something of a prerequisite. The case should have ended at the beginning, really.

    2600 has a MUCH stronger case than the MPAA. They just don't come across as well to a biased judge.
  • by jamiemccarthy (4847) on Thursday August 17, 2000 @10:26AM (#848588) Homepage Journal

    "Defendants, on the other hand, are adherents of a movement that believes that..."

    It is bizarre that a judge would include in his conclusion statements about the beliefs of plaintiffs and defendants. Isn't the whole point of blind justice that decision is made based on actions, not the personal beliefs of those who act?

    In First Amendment cases in particular, it is very important to distinguish beliefs from the content in question.

    If I post a photo on the internet which is not obscene, for example, the judge cannot throw me in jail because of my beliefs.

    And if I make a statement about someone which is not libelous, to pick another example, the judge is not allowed to decide based on which movements I belong to. Freedom of association is another freedom guaranteed by the First Amendment; it is unconstitutional in this country to use one set of laws for people in organizations we like, and another set for those we don't.

    Jamie McCarthy

  • by Sloppy (14984) on Thursday August 17, 2000 @10:32AM (#848589) Homepage Journal

    The DMCA is a law. Anyone posting DeCSS is in direct violation of that law. It's really really simple.

    No, it isn't. DMCA talks about circumventing the protection without authorization, but so far (I haven't finished reading Kaplan's whole opinion yet) the judge has not explained why the owner of a DVD does not have authorization to watch the movie.

    Remember: DMCA strongly implies that whatever authorization there is, comes from the copyright owner of the work, not the inventor of the encryption algorithm. Furthermore, the DVDs are sold without the buyer contractually agreeing to certain conditions (i.e. using an approved player) in exchange for that authorization. Therefore, the question of whether I have authorization or not, is identical whether I play the movie with LiVid or a Sony DVD player.

    If I am violating DMCA when I play a DVD with LiVid, then I am violating DMCA when I play a DVD with a Sony DVD player. I am pretty sure this situation was not Congress' intent, therefore I think authorization has been granted, and therefore DeCSS does not break the law.


    ---
  • by Sloppy (14984) on Thursday August 17, 2000 @12:19PM (#848590) Homepage Journal

    It looks like Kaplan found a hole in the Plaintiff's case and tried to patch it himself by pretending that some additional legislation has been passed! Maybe he always wanted to be a congressman instead of a judge. Check this out, from from page 32:

    One cannot gain access to a CSS-protected work on a DVD without application of the three keys that are required by the software. One cannot lawfully gain access to the keys except by entering into a license with the DVD CCA under authority granted by the copyright owners or by purchasing a DVD player or drive containing the keys pursuant to such a license.

    I call your attention to the phrase "by purchasing a DVD player or drive containing the keys pursuant to such a license." Where did this come from? It's not in DMCA. Kaplan pulled it out of his ass.

    Why is this important? Why did Kaplan make this up? Because: The plaintiffs need for the "authorization" to watch a DVD to not be granted by purchasing the DVD. If authorization is granted by buying the DVD, then DeCSS and LiVid do not violate 1201(a)(2).

    Kaplan could conclude that authorization is never granted, but that would mean that watching a DVD is always illegal, regardless of the player. Clearly, that would be contrary to Congress' intent when they wrote DMCA. Coming to a conclusion that is contrary to the intent of the law would be a very bad thing. Sort of like an indirect proof in math, where you assume the opposite of what you want to prove, and show that it leads to a contradiction. Kaplan must dream up some way for authorization to be granted to watch the copyrighted work, without it being implicitly granted when one purchases the copyrighted work.

    One way that a consumer could get authorization would be to sign a licensing agreement when they buy a DVD, where the terms are that the consumer gets authorization, in exchange for agreeing to not watch the DVD on unlicensed players. That would work perfectly. Just one problem: it is ridiculous. People don't sign license agreements when they buy DVDs. So that idea is out.

    At this point, Kaplan is in a real pickle. He can't say that authorization is granted by an explicit agreement, because DVDs just aren't sold that way. He can't say that authorization is never granted, or the defense wins. He can't say that authorization to watch the DVD is granted when the DVD is bought, or the defense wins. And of course he can't let the defense win, because that would make his old firm look bad since they did consulting work for MPAA. (If only he had recused himself, it would be someone else's problem, and they could just rule for defense. But he didn't recuse himself. Oops.)

    The poor man is in a real bind here. What can he do? He has to invent some other way for authorization to be granted, and here's what he came up with: "by purchasing a DVD player or drive containing the keys pursuant to such a license." DMCA pretty strongly implies that authorization comes from the copyright owner. There certainly isn't anything in DMCA that says that authorization comes from the algorithm inventor. Maybe if it had been patented, that would have worked. But CSS isn't patented. Oops.

    There's my challenge to Kaplan and the plaintiffs: explain how I get authorization to play all CSS-protected works (even CSS-protected works where the copyright owner is not a member of MPAA and has no agreements with DVD CCA) by buying a player. Show me the part of DMCA where it says that I can get authorization to circumvent the protection of a copyrighted work, from a third party who may not be acting on behalf of the copyright owner. Show me. I bet you can't.

    I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD and sue Sony for trafficking in a player that plays it. Let Sony's lawyers explain how they, not me, grant consumers the authorization to circumvent the protection on my work. Let Sony's lawyers explain how they bought that right from DVD CCA. Let them explain how DVD CCA has universal authority over all copyright works that are scrambled by an algorithm that is unpatented, public domain, and available from thousands of sites across The Internet.


    ---
  • by adimarco (30853) on Thursday August 17, 2000 @10:00AM (#848591) Homepage
    I know it's going out of style these days, but let's see what the consitution [nara.gov] has to say on the matter of intellectual property.

    This clause is varyingly known as the "copyright clause" or the "patent clause" depending on what kind of a lawyer you are. Either way, this is the exact wording in the Constitution (section 8) that provides for the creation of Intellectual Property.

    It says:

    The Congress shall have Power...
    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;


    It seems that the authors of the consitution had not intended in any way for Intellectual Property to be a financial protection in the way that it is currently interpreted. Seemingly in direct contradiction, the judge says:

    Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain.

    (emphasis in both cases rather obviously mine)

    Something smells fishy here...

    Anthony
  • by rjh (40933) <rjh@sixdemonbag.org> on Thursday August 17, 2000 @12:33PM (#848592)
    But over-ruling the DMCA was certainly not his job.

    The Supreme Court of the United States disagrees with you, as does the vast majority of Constitutional scholars in this country.

    Any and every Article III Judge in the United States (and Kaplan is one) has a Constitutional duty to see that the law of the land is upheld.

    The nation's highest law is the Constitution. It is therefore the required duty of all Article III judges to review laws which come before them for Constitutionality.

    Judge Kaplan did so in this regard; he came to the conclusion that the DMCA's more odious provisions do not violate the First Amendment. Overruling the DMCA, if it is unconstitutional, is definitely his job...

    ... he just decided that source code is not worthy of Constitutional protections.

    When the Supreme Court handed down a ruling that Andrew Jackson disagreed with, Jackson refused to execute the Court's order and commented: "[The Court] has made its ruling; now let it enforce it."

    I'm tempted to write a letter to Judge Kaplan saying the exact same thing.

    By the by--many lawyers and judges will disagree with me here, but I strongly encourage people to write letters to Judge Kaplan. Keep them polite, respectful and intelligent--trust me, you do not want to piss off a Federal judge. He will not respond to your letter, no matter how much he wants to; Federal ethics laws forbid him from responding to citizen complaints.

    However, the First Amendment guarantees that we have the right to petition the Government for the redress of grievances. The First Amendment nowhere states that we can only petition our President and Representatives.
  • by tdrury (49462) on Thursday August 17, 2000 @11:37AM (#848593) Homepage
    and if I point at you while you are wearing your T-shirt, am I guilty of linking?

    -tim
  • by q2k (67077) on Thursday August 17, 2000 @09:42AM (#848594) Homepage
    So am I breaking the law if I wear my DeCSS shirt tomorrow?
  • I found Kaplan's opinion strongly worded, to say the least. He starts out by equating programming as speech to political assassination as speech.

    I understand the limitations on "calls to action" like incitement to crime or yelling fire in a crowded theater. But if that's the basis for eliminating the First Amendment as protecting DeCSS, there's a contradiction between that and the protection that Loompanics [loompanics.com] books get, which include guidelines on credit fraud, making and using explosives, manufacturing illegal drugs, escaping from jail, etc. Posting DeCSS isn't an incitement to commit crime anymore than posting a description of how to make a submachine gun is - what the user does with the information is the user's responsibility, not the information's.

  • Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located

    I followed this case kind of closely, and I don't remember even a shred of the DeCSS defense revolving around the argument that intellectual property should be free to all. The strongest DeCSS argument, in my opinion, was the one that the reverse engineering was specifically legal because it allowed the content to be played on platforms for which there was not a "legitimate" player.

    But regardless of that, I think this ruling shows a fairly huge amount of bias on the part of Kaplan, since I don't believe someone who actually read and understood the defensive filings would summarize the defenese's position in this manner.

    Or, to be less sinister, maybe it was just a serious lack of understanding on Kaplan's part. One way or another though, the gross misrepresentation of defense's argument in the ruling should be strong grounds for appeal.

    -b

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