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United States

Supreme Court to Take Up DeCSS Case 154

Posted by CowboyNeal from the movin-on-up dept.
geekee writes "CNET has posted an article claiming the US Supreme Court will take up a 1999 case involving individuals posting DeCSS on web sites based in the US. In November, the California Supreme Court had ruled that Matthew Pavlovitch could not be sued in CA since he's not a CA resident 'with no substantial contact with California'. The injunction placed before the start of the CA trial will remain in effect. The case is essentially about juristiction when attempting to prosecute a number of defendants simultaneously in order to save on legal fees."
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Supreme Court to Take Up DeCSS Case More

Supreme Court to Take Up DeCSS Case

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  • DeCSS (Score:4, Funny)

    by oateater ( 593228 ) <oateater@nerdc[ ].net ['lub' in gap]> on Friday January 03, 2003 @09:08AM (#5005361) Homepage
    I sure hope Judge O'Conner doesn't tell everyone that I burnt her The Matrix last week..
    • > I sure hope Judge O'Conner doesn't tell everyone that I burnt her The Matrix last week.

      I suppose hearing "Now look here, plaintiff, you give me any of that juris-my-diction crap..." would be a dead giveaway?

  • Fair use & reverse engineering (Score:3, Interesting)

    by bolsh ( 135555 ) on Friday January 03, 2003 @09:13AM (#5005384) Homepage

    Not being a constitutional lawyer, is it possible to turn this on its head and while people are there anyway arguing that DMCA is an unconstitutional infringement on freedom of expression?


    And although "fair use" and the right to reverse engineer aren't constitutional, could there be an argument for striking down DMCA because of the limitations it puts on those principles?


    Dave.

    • Fair use, etc. and the prohibition against reverse engineering as a federal crime are both areas I would like to see the DMCA struck down as well. However, the scope of this case won't touch on much of your questions, except in the matter of "jurisdiction", which is still a huge one and I am glad that the court has taken it up because at it's core it is critical to the freedom of the Internet.

      Where this case holds my interest is that the DMCA is a Federal law with country wide jurisdiction, but the CCA (and MPAA) are suing under California law and (if my non-lawyerly reading of the text is accurate) essentially applying it across state lines in a way that if allowed would essentially put a chilling effect on freedom of speech, i.e., you can say what you want as long as a corporate interest in another state can use the laws of that state to threaten you.

      For my part, I really don't think that the SCOTUS (Supreme Court of the United States) will disagree with the circuit court, but this case could also act as a precedent setting case for other related issues outside the realm of the Internet that bear some deeper legal analysis.

      That said, I think that a win for the sites that posted the DeCSS source code is not only a victory for free speech but a nail in the coffin of CSS. Until the MPAA comes up with their next form of encryption and we start the whole ball game over again.

      • Comment removed based on user account deletion
        • IANAL but how can it still be a secret? Surely once the secret is "discovered" and published it ceases to be a secret.

          This is the tradeoff between trade secrets and patents. If you patent something then it is disseminated but you have a monopoly on its use/licencing. If you keep it a trade secret then the information is not disclosed but you run that the "secret" will be discovered and if that happens you have lost your monopoly.
          • If it was treated as a trade secret, and the disclosure was unauthorized, the owner of the secret can certainly sue the disclosers even if it's no longer a secret.

            Here's the funny thing (and I think you were thinking about this situation): say, for example, Coca-Cola disclosed to Cadbury-Schweppes, RC Cola, and every rum manufacturer in the western hemisphere the secret formula to Coke, under NDA. A disgruntled Coca-Cola employee then without authorization discloses the formula to Pepsi, which uses it to make "Pepsi II." Coca-Cola can sue Pepsi (and the disgruntled employee) under trade secret law (depending on the state, since trade secret laws are state laws), *even though it's not really a secret after all the other disclosures.* Now, it depends on the state, but Coca-Cola would win this situation in at least a few states.
            • If it was treated as a trade secret, and the disclosure was unauthorized, the owner of the secret can certainly sue the disclosers even if it's no longer a secret.

              There can be "unauthorized" discolsures where the owner does not have grounds to sue. A recent case involved KFC. A couple bought Col. Sanders house. The couple latter alleged to have found the "original recipe" amoung some papers left in the house. KFC tried to block the couples selling of the recipe; but, the judge wouldn't block it. This is a case where the discolure was unauthorized yet the owner had no grounds for a suit.

              • It certainly depends on the state trade secret laws, because the same situation would result in KFC winning in several states. At any rate, I'm sure you can see how the Col. Sanders case is a bit different. The issue there isn't so much whether the disclosure was unauthorized, but whether there was disclosure at all. Say, for example, someone serendipitously stumbles upon the KFC recipe (just like finding it in your attic) and then publishes it. There's no disclosure, much less unauthorized disclosure, so KFC can't sue under trade secret law.
                • It certainly depends on the state trade secret laws, because the same situation would result in KFC winning in several states.

                  What state do you would have a different outcome? AFAIK, all states require that the secret holder take resonable precaustions to protect their secret. If you lawfully obtain the secret without signing an NDA, you are legally allowed to disclose it.

                  I'm sure you can see how the Col. Sanders case is a bit different.

                  Not really. Basically, they are the same. The outcome will depend on the answer to the question "Did the defendants legally obtain the information?". In the KFC case, all items in the house become property of the new owner when they purchased the house and they had not signed any NDA.

                  The plaintiffs in the CA case are arguing that the defendants knew or should have known that the information was obtained illegally. I think the defendants could make an arguement that that is not necessarily true.

                  • What state do you would have a different outcome? AFAIK, all states require that the secret holder take resonable precaustions to protect their secret. If you lawfully obtain the secret without signing an NDA, you are legally allowed to disclose it.

                    I actually didn't mean to say KFC here; I'm sorry. I only meant that there have been several cases in several states in which owners of trade secrets whose secrets were otherwise essentially not secret -- but were treating the knowledge as secret anyway -- were able to sue successfully parties who obtained and disclosed the knowledge unauthorized. It's just one of those weird things.

                    The KFC case *is* different. The house buyers accidentally came across the secret recipe. In this case, there was already a lot of legal brouhaha over the publication of the code for deCSS; the plaintiffs in the case knew this, and republished anyway. (In fact, the plaintiffs use that argument to defend themselves: that the fact that the code was already published rendered the information public and thus not secret.) The difference is that there was no misappropriation to speak of in the KFC situation, but there may have been in the deCSS case.

                    You're absolutely right though: the defendants can make a very credible argument against being subject to violating trade secret laws. All I'm saying is that trade secret laws sometimes lead to screwy results, and that they definitely have the weakest jurisprudential basis of any form of IP on which to make easy predictions.

    • I don't believe you can... (Score:5, Informative)

      by MyNameIsFred ( 543994 ) on Friday January 03, 2003 @09:44AM (#5005492)
      IANAL, but it is my understanding that the arguments presented have to be directly relevant to the case. The issue appears to be whether the CA courts have juridiction. Furthermore, the defendent is NOT charged under DMCA, rather violations of trade secret laws.

      IMHO, any lawyer that brings up DMCA would look like an idiot. It should be noted that only a certain select group of lawyers can be present oral arguments to the Supreme Court. I am not sure what you have to do to become qualified, but I do know that you can't hire just any lawyer.

      • Supreme Court (Score:5, Informative)

        by Detritus ( 11846 ) on Friday January 03, 2003 @10:39AM (#5005833) Homepage
        It doesn't take any special qualifications to be admitted to the Bar of the Supreme Court. Get your application here [supremecourtus.gov]. I've seen these certificates on the walls of many law offices in Washington, D.C. There are about 180,000 lawyers who are members of the Bar of the Supreme Court.

    • Re:Fair use & reverse engineering (Score:5, Insightful)

      by famazza ( 398147 ) <fabio.mazzarino@gmail . c om> on Friday January 03, 2003 @09:46AM (#5005501) Homepage Journal

      Freedom is just a tool to make more money and keep the population under control.

      • Freedom is Slavery
      (Just like G.Orwell in 1984)

      If Freedom is a threat to profit then something must be done. This is what DMCA is about! They are trying to transform fair use into piracy, transform right into crime.

      Try to figure this. If you have a TV then you can share it with your neighbor, and he can come to your home and watch some TV. If we follow RIAA/MPAA steps to the extreme we'll have a near future where sharing your TV with your neighbor will be piracy. (reality check: Finnish Taxi Drivers Must Pay Music Royalties [slashdot.org])

      So the point here is not about what is right and what is legal. It's about what is profitable and what is not.

      • (reality check: Finnish Taxi Drivers Must Pay Music Royalties)
        While I'm sympathetic to your arguement, there's a slight difference between your living room and a taxi cab: you pay to ride in the cab. If you charged your neighbor to come over and watch TV, you'd be violating the terms of the current license on your personal DVDs and video tapes -- read the fine print that comes with the FBI warning, where it says something to the effect of "no commercial viewing." This is nothing new.

        • If the taxi driver has to pay to play music, does the radio station get a refund for the N people who THEY paid for too?

          The problem here is that they're selling the same good (right to listen to song X) repeatedly. This is NO different from going to the auto dealer:

          "That will be $15000.... oh wait, you have a family? Well, each of them *might* use the car so we'll have to work something out. Let's see, there's 5 of you so the total comes out to $75000."

          Of course in the RIAA's case, later the dealer would report to the car manufacturer:

          "Well, we sold one car this month, here's your $500"

          • (...) slight difference between your living room and a taxi cab: you pay to ride in the cab. (...)

          Sorry, but I don't agree. I pay to ride in the cab, not to listen to the music. Even if the taxi driver is listening to a music and is polite enough to play the music I want, I still don't pay to listen, he just let me choose the music that we both would like listen. (just like when a friend of yours watches TV with you)

        • Over the Holidays, I was in an Applebee's in Little Rock, and while drinking at the bar, noticed on a lable affixed to the front of the TV there that was showing a broadcast show, it said, something to the effect that they could not turn the sound on a broadcast program...that it would break copyright laws....I've never heard of this before. Is this new? I've been in lots of bars that show football and other broadcast shows with the sound on.....what's the deal with this?
        • If you charged your neighbor to come over and watch TV, you'd be violating the terms of the current license on your personal DVDs and video tapes...

          Right conclusion, wrong reason. It would be illegal because you were engaging in public performance, a right exclusively held by the copyright holder. The FBI warning isn't a license, it's a reminder of the existing copyright laws. (Which is why the FBI is involved. The FBI doesn't generally worry about breaches of licenses, but they are interested in breaches of laws.) It's important to not let the copyright industries convince us that we have no rights in the absense of license. We most certainly do.

        • you'd be violating the terms of the current license

          Except where are these so calle d'licenses' valid? Lawyers say they are not valid here in europe.
      • sharing your TV with your neighbor will be piracy

        Perhaps you have heard about the case where a babysitter was fined because she watched the TV and the householders had not paid the (united kingdom) television license fee? Ouch!

    • Not at all. If the Supreme Court grants cert. and takes on the case, it will only decide the issue as to whether or not the federal constitution prohibits California courts from hearing the DCMA case against Pavlovich. It's not a DCMA issue at all - it's a jurisdictional issue, ie:

      Does posting something on the Internet expose you to lawsuits in other states in which other parties who may be indirectly injured by your posting are harmed?

      It's an important internet-related legal issue, because if Pavlovich loses, you can be hauled into court in other states for what you post on the internet in your own state of residence - even if you are not doing business in those other states.

      If Pavlovich loses, then the trial court will consider the DCMA issue.

  • ReCSS (Score:5, Interesting)

    by jamesjw ( 213986 ) on Friday January 03, 2003 @09:17AM (#5005400) Homepage

    I am surprised there isn't a rogue bunch of do-gooder MPAA avocate programmers out there building a ReCSS..

    You know.. to reprotect all those unprotected movies out there in the ether..

    Then the MPAA could sue everyone that DOESN'T include a copy of "ReCSS" on their website :)

    • Re:ReCSS (Score:3, Insightful)

      by mark_lybarger ( 199098 )
      i'm sure you're being sarcastic, but that's like someone trying to sell automobile door locks from the 70's that are easily openable with a slim-jim. people know they're junk, they don't work anymore for what they were intended for, so why would anyone in thier right mind try to sell them. we've all moved on to remote keyless locks (i don't know if they're any less suseptable to breakins, i'm just assuming so for the sake of discussion).

      here you have the mpaa, they put a "lock" on their IP. that lock lasted a few years if that. the locks been broken and nothing they can ever do will fix their lock. hey, here's a concept: give the consumers something they're willing to go to the theaters and watch! give them something they're willing to spend their 15-20$ to buy the dvd rather than spending 30 minutes copying it. i don't see that hapening anytime soon though
      • but that's like someone trying to sell automobile door locks from the 70's that are easily openable with a slim-jim.



        AFAIK, car doors can still be opened with slim jims. At least, that is how I have gotten into my car every time I locked my keys inside. Ironically, the only time my car was stolen, the thief(s) did not use a slim jim. They just broke the window.

      • Re:ReCSS (Score:5, Insightful)

        by racerx509 ( 204322 ) on Friday January 03, 2003 @11:28AM (#5006307) Homepage
        "give the consumers something they're willing to go to the theaters and watch! give them something they're willing to spend their 15-20$ to buy the dvd rather than spending 30 minutes copying it. i don't see that hapening anytime soon though"

        I disagree. Generally they do put out some decent stuff. I think what is happening is that they do not want to suffer the same fate as the RIAA. This year was the biggest year of profits since the 1930's for the MPAA. They racked up 1+ billion dollars more than they normally do, so they have no claims of lost profits like the RIAA can. They also have found a runaway success in the easily crackable yet still preferably bought DVD medium. While people can download movies from the net, most prefer to go out and spend $8.99 for that two year old movie that they want to have on DVD. Rental services such as netflix (my only real vice) are a runaway success, and I will admit, I have yet to rip and copy any of my DVDs because its too much trouble.

        These guys just see the handwriting on the wall and want to nip it in the bud. I personally don't think its right that they are trying to infringe on our fairuse rights, but at least they are being more cooperative than the RIAA. They have taken the first tenative steps into online distribution that while faulty, is more than I can say for their musical cartel cousins.

        Someone needs to drag out all the stops in this case. i don't like the idea of having such a wide jurisdiction when sueing somebody, but for f#ck sakes, get Felten in there. Try and make the idea of playing DVDs on linux look like something regular folks do and not something that "hackers do". Show them that we only want the same rights and abilities that we had in the analog world, and that the powers that be are trying to strip them from us. If only the defense of Pavlovich/EFF could have an ask slashdot session could I truly think they would come up with a decent defense.

        I could see it now.....

        Defense lawyer: Your honor, I would like to say. First Post!

        • I disagree. Generally they do put out some decent stuff. I think what is happening is that they do not want to suffer the same fate as the RIAA.

          What fate would that be? The fate of having more people buy the recordings than would otherwise have because they had a chance to hear them first? Granted, that hasn't been enough to compensate for their lost sales due to lost quality of content, but that's not a copying issue - more of a "clearchannel sucks" issue.

          Look at the typical cost of a DVD or VHS of a movie. Look at the typical cost of an audio CD. They aren't that different, yet the movie took a lot more work to produce. That's why the sales for the MPAA are doing well in comparasin to the RIAA. The RIAA has a more insanely inflated markup percentage and consumers can sense that.
          $20 for a movie with optional commentary, deleted scenes, wide and narrow screen formats, and choice of captions is worth it. $15 for 60 minutes of audio-only music is not.

          • How about $20 for two original star trek episodes that used to show free on TV? They are not always as reasonable as you think.
          • "$20 for a movie with optional commentary, deleted scenes, wide and narrow screen formats, and choice of captions is worth it. $15 for 60 minutes of audio- only music is not."

            Ha! wrong again. Your saying a $15 CD with 60 minutes of audio. It costs more like $20. I recently patronized the RIAA against my better judgement this Christmas season, and the new release CDs cost $19.99. YOu are right though, that the MPAA tends to give more value per dollar for its products though. DVDs also go down in price as well. YOu can purchase a great many $7.99 DVDs of older movies at store racks now. Yet another reason as to why the RIAA is a bloated cartel. Not taht the MPAA isn't, but at least they handle their bloat in a better manner.

      • Re:ReCSS (Score:4, Offtopic)

        by poot_rootbeer ( 188613 ) on Friday January 03, 2003 @12:45PM (#5006914)

        Your remote keyless lock doesn't do you any good when I take a rock and smash your window in.

        No security measure is failsafe. Obviously the lesson to be learned here is "don't try".

        Signed,
        The World's Worst Sysadmin
        • lol, that was great. Completely feasable with a 100% valid point, but still funny as hell. Change that offtopic mod to a funny :)
      • No, the end of a crow bar through your window still works quite well. a hand towel usually dampens a lot of the noise (from the window).

    • Re:ReCSS (Score:3, Interesting)

      by captaineo ( 87164 )
      You actually bring up a serious point. One question that often gets overlooked in the DRM debate is, "who owns the keys?" Most DRM systems only allow major studios to encrypt their works; there is no "home edition" of the cypher algorithm for independent artists to protect their own projects. (or if the algorithm is public, there is no way to get the keys needed for encryption).

      Thus the protection afforded by DRM is very asymmetrical, as opposed to copyright, which applies to all authors. (unless you crack the algorithm and distribute ReCSS...)

  • what about my backups! (Score:5, Insightful)

    by Tenchi-kun ( 559120 ) on Friday January 03, 2003 @09:23AM (#5005416) Homepage
    What I would like to know is how this is going to effect the consumer, because if I remember correctly, any consumer may create a copy of a movie/cd/software that they own and use that "backup" copy in order to preserve the orginal copy of the media. I remember the arguement that the MPAA had when VCRs initially came out, as well as the arguements about audio casettes as well. I don't see how making a copy of your DVDs, for your own personal use, is any different.

    I can understand that they are fighting this because you can send out bootleg copies of movies on the internet, but you have to wonder, if the internet wasn't as prevelant in the USA as it is, would we even be hearing about this?

    • Re:what about my backups! (Score:4, Insightful)

      by LostCluster ( 625375 ) on Friday January 03, 2003 @10:20AM (#5005712)
      The problem is the way fair use is worded. It's not "You have a right to create a backup." It's closer to "If you do create a backup, you haven't violated the law by doing so."

      The xxAA's can't ram through a law ending that backup exception, that'd smell funny and no representative would vote for it. So what they put instead into the DMCA is a restriction that makes it illegal to publish instructions on how to break any encryption when its used to protect a copyrighted work. If you can't decrypt the data in order to make your backup copy, it's impossible to make that backup copy.

      People aren't fighting for the affirmative right to make a backup copy for one reason... people falsely think we already have it.
      • Except that, as has already be stated multiple times, you do not need to break the encryption to make the backup. The bit copy backup will function in exactly the same way as the original. You only need to break the endryption to actually use the DVD, either original or backup.

        • Re:what about my backups! (Score:5, Interesting)

          by swillden ( 191260 ) <shawn-ds@willden.org> on Friday January 03, 2003 @11:24AM (#5006272) Journal

          Except that, as has already be stated multiple times, you do not need to break the encryption to make the backup.

          Except that, in practice, you do need to break the encryption to make a backup. The DVD-CCA has made it extremely difficult for consumers to obtain blank, writable DVD media that can be used for bit-for-bit backup purposes. How? Simple, the region of the disk where the disk decryption keys would be stored is not writable, so you can't copy that part of the original disk.

          Of course, large-scale pirates are completely unaffected by this limitation.

      • Re:what about my backups! (Score:4, Interesting)

        by angle_slam ( 623817 ) on Friday January 03, 2003 @10:51AM (#5005930)
        The problem is the way fair use is worded. It's not "You have a right to create a backup." It's closer to "If you do create a backup, you haven't violated the law by doing so."

        That's not quite right either. You don't have a "right to create a backup. Nor are you exempt from the law by making a backup (with the exceptions of certain forms audio recording for non commercial purposes (The AHRA [cornell.edu])).

        Fair use is defined here [cornell.edu] and does not include a right to make a backup copy. In fact, the copying of the entire original article is a factor against fair use.

        In fact, the Sony VCR case [findlaw.com] decided that time-shifting was a fair-use, under the assumption that people wouldn't be making a library of tapes.

        • Re:what about my backups! (Score:4, Informative)

          by aufait ( 45237 ) on Friday January 03, 2003 @11:43AM (#5006435) Homepage
          You don't have a "right to create a backup.

          I disagree. The link you provided shows that the copyright law allows consumers to make copies of audio recordings:

          No action may be brought under this title alleging infringement of copyright based on the manufacture,...of a digital audio recording device...or based on the noncommercial use by a consumer of such a device.
          And Section 117(a)(2) [cornell.edu] gives the owner of software the right to make a backup copy.

          • Re:what about my backups! (Score:4, Interesting)

            by angle_slam ( 623817 ) on Friday January 03, 2003 @01:44PM (#5007306)
            Correct, you point to specific exceptions. The post I was replying to implied there was a general right that applied to all types of copyrighted works. Also, be careful with the AHRA. It is true that it says:
            No action may be brought under this title alleging infringement of copyright based on the manufacture,...of a digital audio recording device...or based on the noncommercial use by a consumer of such a device.
            But that statement is limited by the definitions in the act, such as:
            ''digital audio recording device'' is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use . . .
            From 17 U.S.C. 1001 [cornell.edu]. The position of the RIAA is that:
            Multipurpose devices, such as a general computer or a CD-ROM drive, are not covered by the AHRA. This means that they are not required to pay royalties or incorporate SCMS protections. It also means, however, that neither manufacturers of the devices, nor the consumers who use them, receive immunity from suit for copyright infringement.
            From RIAA's copyright FAQ [riaa.org]. Note: that link no longer seems to work. Check out my previous post [slashdot.org].

            Note: I am not stating the copying is right or wrong, just stating what the law is and what the RIAA interprets the law to be.

    • Re:what about my backups! (Score:4, Interesting)

      by MImeKillEr ( 445828 ) on Friday January 03, 2003 @10:26AM (#5005744) Homepage Journal
      What I'd like to see is someone suing the RIAA or any software company for blocking our rights as consumers from making said backups.

      Hell, I'd *love* to be able to make a decent working copy of MechWarrior 4 so I don't run the risk of scratching the original. I've tried CloneCD as well as a couple of others to no avail.

      Just *try* getting ahold of the author of works you own and have a legal right to make back ups of. Ask them how to go about copying their works for your archival purposes. Although I've never tried, I'm sure they'll likely laugh at you.
      • Hell, I'd *love* to be able to make a decent working copy of MechWarrior 4 so I don't run the risk of scratching the original. I've tried CloneCD as well as a couple of others to no avail.

        just download a cracked copy from your favourite p2p network...
      • blindread/blindwrite will copy MW4 providing you have a burner that supports subchannel copying (such as older plextors).

        Make sure you read/burn at the slowest speed though, just to be cautious... I've had issues burning at higher speeds when using all the subchannel options.

        In general, there are good articles about CD authoring at gamecopyworld.com

    • Re:what about my backups! (Score:4, Insightful)

      by tswinzig ( 210999 ) on Friday January 03, 2003 @10:51AM (#5005931) Journal
      This is why this whole case is stupid.

      The MPAA claims they want to stop pirates. But you don't need to decrypt a DVD's contents to pirate the movie. Just burn exact duplicates of the DVD you've already got. Your DVD player already has DeCSS built-in, so to speak.

      This is not about pirating or your ability to make backup copies of DVD.

      • almost there... (Score:3, Insightful)

        by bill_mcgonigle ( 4333 )
        Just to clarify, DeCSS does not help making backups (defined as an exact copy). In fact, it's nearly impossible for the consumer to make a backup of a typical commercial DVD. The biggest problem with making backups at home is that there is no DVD-R method for making DVD-9's [apple.com]. The big illegal copying shops can handle this, of course. Whether this situation is technological or a result of cartel collusion is an excercise for the reader to determine.

        What DeCSS does is enable fair use.

        Keep repeating that over and over until you're blue in the face. Maybe somebody will hear it eventually.

        disclaimer: yes, you could re-master the data from a DVD onto multiple DVD-R's, but that's not what most people mean by 'backup'.
    • What I would like to know is how this is going to effect the consumer,

      It won't. At least not directly. None of the defendants were named because they made a backup copy. They were named because they posted DeCSS on their web sites.

    • Disney says you don't need backups (Score:5, Interesting)

      by swillden ( 191260 ) <shawn-ds@willden.org> on Friday January 03, 2003 @11:34AM (#5006364) Journal

      What I would like to know is how this is going to affect the consumer, because if I remember correctly, any consumer may create a copy of a movie/cd/software that they own and use that "backup" copy in order to preserve the orginal copy of the media.

      I noticed an interesting thing in the packaging that came with one of my kids' Disney DVDs last week: You can now register your purchases with Disney and, in return, they will send you a new copy of any registered DVD if the original gets damaged.

      On the one hand, this is a very nice benefit for the consumer: I don't have to bother finding ways to back up my DVDs, because if they ever get ruined, the company will ship me a replacement, at their cost. Of course, it only works as long as the company continues to offer the service.

      On the other hand, I have to wonder if this isn't just part of their strategy to eliminate Fair Use exemptions. "No, Senator, consumers do *not* have any legitimate need to make copies... Yes, of course we recognize that disks get damaged, which is why we've generously arranged to replace damaged disks, which is a much better solution for consumers since it requires no expensive technology, just a phone call or a letter... Thank, you, sir, yes we think so too... Yes, sir, our contribution to your campaign will be in the mail tomorrow."

      • Look, if a company is willing to replace a damaged DVD--assuming they're the ones eating the shipping cost--then what would a buyer need to make backup copies for? Somehow I have a feeling that even if the MPAA as a whole ever agreed to replace all damaged DVDs at no cost then people would still find something to whine about.
        • if a company is willing to replace a damaged DVD--assuming they're the ones eating the shipping cost--then what would a buyer need to make backup copies

          Out of print releases. Most companies will not make a new run of media (even for a "backup service") once an item goes out of print. Give me a guarantee that you'll allow me to get the bits 100 years from now, after my cherished DVD, bequeathed to my son, and given to his grandson has been scratched and then I'll accept the argument. Also, you better be willing to give me a DVD player once the technology goes obsolete. As long as I'm paying obscene amounts for the information, I want access to the information.

        • Somehow I have a feeling that even if the MPAA as a whole ever agreed to replace all damaged DVDs at no cost then people would still find something to whine about.

          You bet! I would whine about my rights!

          If I own an audio recording, I can make a copy for every room in my house. One for every player. One for each car. This is my right.

          I have no right whatsoever to redistribute, in any form.

          But, I should stop whining. God bless the MPAA. They only have our best intersts at heart. We should shut up and go back to consuming content.
      • Having worked for Disney, I do know a little bit about this. The reason that they say that they will replace their DVDs is because of the fact that half of the time they are ordered through the Disney catalog, the customer will receive the DVD damaged. Those Disney collectors can be asses too when they have to have EVERYTHING in their collection be in pristine shape.
      • I noticed an interesting thing in the packaging that came with one of my kids' Disney DVDs last week: You can now register your purchases with Disney and, in return, they will send you a new copy of any registered DVD if the original gets damaged.

        "Oops, I broke my [movie] DVD. Please send me another." Give the replacement to your buddy. Wait six months. Lather, rinse, repeat. Of course, this is no longer copyright infringement, since they're making the copies. It may be fraud, but that's another matter. In any event, if they do sue you, it'll be civil (tort) and not criminal. (Ob IANAL)

        Added bonus: Have fun with your friend when they start getting snail-mail spam with your name on it. Figure out to whom Disney sells their customer lists.

        On the other hand, I have to wonder if this isn't just part of their strategy to eliminate Fair Use exemptions.

        No way. One company cannot be allowed to dictate or usurp the law. You'll never see this argument be taken seriously by legislators unless the government steps in and regulates the DVD distribution industry. Fat chance that, the MPAA will kill that legislation.

  • woah woah, hold your horses there! (Score:5, Informative)

    by smd4985 ( 203677 ) on Friday January 03, 2003 @09:27AM (#5005431) Homepage
    i don't think the court has agreed to take the case just yet. it has just maintained the injunction until the court can decide IF it is going to take the case. furthermore, i'm not sure if the decision would in any way make a ruling on the DMCA.

    "A response from Pavlovich's attorney, Allon Levy, is due by the end of the day on Thursday. Because O'Connor is the Supreme Court justice responsible for cases arising out of California, she has the ability to place some decisions on hold until the complete court can meet and vote to take the case or deny the petition for review."
    • The US Supreme Court only answers the question before it... and the question this case is asking is about jurisdiction (so that somebody can be tried under the DMCA), not the DMCA itself.

      There is no chance we're going to get "The DMCA is unconstitutional!" out of this case. The DMCA is not even going to be discussed by the Supreme Court during this visit... maybe later in this case, but not right now.
      • This appeal has not been granted certiori yet, so no question is yet before the high court. All that happened is that O'Connor paused the final resolution while the High Court decides if it wants to hear the case.

        Moreover, this case is NOT ABOUT THE DMCA in any way, it is about JURISDICTION in a state law trade secret case. The Pavlovich appeal does not consider the merits of the trade secret dispute. That is still waiting to go up to the CA Supreme Court after the good guys won below. This one is solely about whether you can be sued in California for posting it to the web outside of California.

        I'm actually surprised by O'Connor's action -- it seems very unlikely that the Supreme Court would have the audacity to tell a state court that it must exercise jurisdiction under that state's law. As the justices are fond of saying: "What is the Federal issue?".
    • Nothing in the article suggests that the court will grant a writ of certiori. It takes 4 justices to decide to take up a case, and it's not altogether clear whether O'Connor even considers the case worthy of review. It's a minor, administrative action.

  • Outmoded business model (Score:5, Interesting)

    by Peyote Pekka ( 635641 ) on Friday January 03, 2003 @09:29AM (#5005439)
    The article mentions use of the phrase trade secrets. I suppose now they'll angle for use of the Economic Espionage Act of 1996 [ncix.gov] to keep the market place from changing.

    Seditious groups like the RIAA/MPAA are fighting a losing battle to try to back up outdated business models with legislation. Copy protection doesn't work [newscientist.com], it's even been tried -- and later dropped -- by software companies like Lotus and Ashton-Tate during the 1980's. The role that RIAA/MPAA companies have played in the past has been as a channel for distribution. The Internet is a much more convenient distribution channel and they need to rework their business models to take that into account. DeCSS is perhaps so embarrassing for the RIAA/MPAA companies because it shows where they are falling far short of market needs -- DeCSS allows time-shifting or space-shifting, both of which are not just fully legal, but widely practiced and accepted.

    Free as in market...the RIAA and MPAA are hurting the U.S. economy.

  • Spot the interesting omission? (Score:5, Insightful)

    by Rogerborg ( 306625 ) on Friday January 03, 2003 @09:34AM (#5005459) Homepage

    According to this article, DeCSS is for "DVD-copying". It is "software that can be used to copy DVDs". It "allows encrypted DVDs to be descrambled". It "injuriously [affects] the motion picture and computer industries in California.".

    Now, all this is true (or debatable, for the last claim), but nowhere in this article does it even hint that DeCSS can be used simply to watch DVD's that you own, which (gasp!) is what I actually use it for. That's a worrying omission, and one which I hope doesn't signal a trend.

    • Not really true (Score:5, Informative)

      by epepke ( 462220 ) on Friday January 03, 2003 @09:52AM (#5005521)

      DeCSS isn't for copying, because you can copy DVDs without using DeCSS or any decryption. Just copy the pattern on the disc. Commercially available bulk copiers do just that. Hell, the large-scale means of producing DVDs are photographic.

    • Well of course not, that's the job of the defense lawyers. The article sumarizes the complaint, under the law. If someone makes a zip gun from a metal pipe and is arrested for shooting someone, the article wouldn't say, "The zip gun, which can also be used for piping water."

      When the defense attorneys give their 2 bits to the press, you'll get to see a more fair picture. The reporter likely doesn't know his ass from his elbow, it's the job of the defense to shed perspective and the judges to say, "Wait, this is bullshit RIAA" of which they seem to be doing a better and better job.

      • Spurious example. That would be more like them saying "The gun was made from Bob's Fixings part #3645", without mentioning that part number 3645 is intended to be used as water pipe and not gun barrels.

        And I do expect journalists to give both sides of a story, at least until the verdict is in. Perhaps I'm old fashioned that way.

        • And I do expect journalists to give both sides of a story, at least until the verdict is in. Perhaps I'm old fashioned that way.

          I'd say you're newfangled that way. The notion of objectivity in journalism is a pretty new one, dating from the early part of the 20th century. Prior to that, journalists were open about their biases, and most people who were interested in the issues subscribed to multiple papers with differing viewpoints in order to understand the different sides and derive their own opinion.

          IMO, the old way was was better. As long as humans are writing the news it will never truly be objective but the current system fools most readers into believing that it is. The result is that readers accept whatever's in print at face value, rather than reading critically and pursuing alternative viewpoints.

          • Very good point. The notion of a "free press" really just means "free to be bought or gagged by anyone other than the government". As you say though, a worrying number of people don't bother doing any background reading, which is why we don't want to see DeCSS pilloried as being purely an 3v1L h4X0r tool.
    • One of the issues at hand is that the inventors of DVD want their licensing fee for software DVD players. By reverse engineering their encryption scheme, you've discovered their trade secret, and bypassed their licensing fee "simply to watch DVD's that you own". Not sure what the legal implications of reverse engineering something declared a trade secret.

  • Predictions... (Score:4, Interesting)

    by assaultriflesforfree ( 635986 ) on Friday January 03, 2003 @09:39AM (#5005480)
    We granted review to determine whether the trial court properly exercised jurisdiction over Pavlovich's person based solely on the posting of the DeCSS source code on the LiVid Web site. We conclude it did not.

    That's from the California Supreme Court. In short, it tells what specific decision of the trial court that they are addressing - namely, they only addressed the matter of jurisdiction.

    So, the Supreme Court will almost certainly be limiting the appeal to that question as well. While they won't be addressing the details of whether or not the DVD CCA is within their rights to prosecute anyone, anywhere for this "crime," this case might mark an important decision in how far U.S. protection of big business extends through optical fiber.

    My prediction:
    *Bill Gates will be named amicus curiae for the case
    *Scalia will conclude that, since electrical pulses travel at nearly the speed of light, the distance between the LiVid servers and California will have shrunk to nothing, thereby placing the server within the jurisdiction of California.
    *Satan will invite Rehnquist to tea.
    • The California Supreme Court ruled that they do not have jurisdiction to rule on this issue. Where would the Supreme Court draw its power to say, "you do have jurisdiction. Issue a ruling, darnit!"

      As far as I'm concerned, if a state says their laws only apply within their state, then the federal government has no business demanding otherwise. On the other hand, if a state had ruled that they do have jurisdiction, then the federal courts would have reason to get involved.

  • NOT a DeCSS Case!!! (Score:5, Interesting)

    by ca1v1n ( 135902 ) <snook.guanotronic@com> on Friday January 03, 2003 @09:49AM (#5005513)
    This is not a DeCSS case. This is a jurisdiction case. It is definitely news for nerds and stuff that matters, since internet jurisdiction is a really big deal. I doubt there will be much or any discussion of the DMCA in this case. Probably a good thing too, because you generally want your test case to be completely beyond reproach. Not that I think that Pavlovich did anything wrong, but something more along the lines of Felton's SDMI paper would be more attractive to the court.

  • different case (Score:5, Informative)

    by Tom ( 822 ) on Friday January 03, 2003 @09:49AM (#5005514) Homepage Journal
    Remember, this is about the jurisdiction question. It has nothing to do with the case itself, i.e. the SC would not decide whether DeCSS is legal or not.

    What this is about is that DVD CCA sued 77 people from two dozen US states and a dozen foreign countries, all in one fell swoop.
    As one of the defendents in question, I have to say it's got nothing to do with saving legal fees. We received an e-mail notification of the pending injunction less than 48 hours before it would have been signed. If you live somewhere in europe, have less than two days and the time difference working against you, there is little chance that you can do anything about it. Even had I gotten hold of legal council first thing next morning, my lawyer would have had less than 24 hours to investigate the relevant US laws, find a California lawyer to represent me and write up a defense.

    This was not at all about saving legal fees, it was all about steamrolling over as many people as you can manage to squeeze in.

    (fortunately, the idiots didn't know CC from BCC, so we got a full list of everyone sued, had all of them put on a mailing list within a few hours and the twits were greeted by EFF lawyers when they tried to get their court signature. The full story is somewhere on my website).
    • Well, good luck to you in this legal battle.
      • Totally off-topic and on the topic of 'godlessgeeks.com', I'm intrigued by the mention of "concered about increasing god-talk". If indeed atheists don't believe in God and I do, and the president happens to, I would simply be in a better place to understand of what he speaks than you. Just as if he were a chemist, a chemist might understand his references to the study of non-newtonian fluids and how they relate to the issues at hand. I don't particularly care if you believe in God or not beyond the obvious (I think you ought to believe in him, since he's there, but I can see why you might decide not to, or not have decided to; whichever the case).

        Ah well ... the issue of the supernatural and the geek :)

  • supreme court (Score:4, Funny)

    by creature ( 250442 ) on Friday January 03, 2003 @10:01AM (#5005578)
    Supreme court is just like regular court, except it also has tomatoes and sour cream.

  • be sued in CA since he's not a CA resident 'with no substantial contact with California'.


    He's not no CA resident eh? ;)

    --Joey

  • Misleading Summary (Score:4, Informative)

    by aufait ( 45237 ) on Friday January 03, 2003 @10:57AM (#5005995) Homepage
    "CNET has posted an article claiming the US Supreme Court will take up a 1999 case involving individuals posting DeCSS on web sites based in the US.

    That is not what the article says.

    Justice Sandra Day O'Connor last week placed a ruling by the California Supreme Court on hold, a decision that effectively enforces an injunction until the full court can consider the case.
    The court has not yet decided if they are going to hear the case.

  • "use of one case to target multiple people" (Score:5, Insightful)

    by e_lehman ( 143896 ) on Friday January 03, 2003 @12:07PM (#5006614)

    The attorneys sought to sue more than 500 people from all around the world in one lawsuit brought in Santa Clara County, Calif. [...] The point is we would like to get the Supreme Court to affirm that the use of one case to (target) multiple people who are distributing information is appropriate," Kessler said.

    This is kinda scary. A major limitation on RIAA/MPAA is that they have to sue their enemies one at a time. Since each lawsuit is expensive and they have about 50,000,000 enemies, this is problematic. So they want permission to able to do a sort of "reverse class-action", where they're allowed to sue everyone at once. They started with a tidy block of 500 defendants, but why not 5000 in the next round? Or 500,000?! Woohoo!

    The courts are already too-often used by those who can afford lawsuits to bludgeon those who can not. Allowing corporations to sue hundreds or even thousands of people at once would be a disaster for the American legal system and America in general.

    • So they want permission to able to do a sort of "reverse class-action", where they're allowed to sue everyone at once.

      This has nothing to do with getting permission to sue a lot of people at the same time. The law gives a powerful incentive for a plaintiff in a certain matter to sue *everyone* that he thinks might be at fault at the time of the suit, because after the judgment is final, the plaintiff might be barred from suing anyone else wrt the same issues. Collateral estoppel (or, as it's called now, issue preclusion) is principally a judicial economy concept that's been around for quite a while.

      The other thing to think about is that there's no fundamental difference between a corporation wanting to sue 500 people and a person wanting to sue 500 corporations (aside from cost and the fact that there are more people than corporations). Both people AND corporations -- litigants -- have had the ability to sue 500 of anything for a very long time. If you think, oh, but a corporation is evil blah blah blah, well, you may be right, but the courts can't and won't assume something like that.

      This case is about personal jurisdiction -- whether a court has power over certain litigants to hear and decide issues between them. It's an extremely important case, but it's certainly not about whether one can sue lots of people at once. The problem for the RIAA/MPAA is that because the defendants are all over the world, it's hard to say that the court in Santa Clara County, CA has the power to hale them all in and make final judgments over all of them. If the court rules against them about this issue, then the RIAA/MPAA has to sue the defendants in the courts that actually have power over them. But if, for example, all 500 defendants lived in CA, *there wouldn't be a question at ALL.*
      • You're missing the comparison; its very different from 500 people wanting to sue one corporation though.

        That's 500 people who agree that one person is at fault, not one person thinking 500 people are at fault.

        That said, it'll be an interesting case anyway.
        • What I'm saying is that it's *not* different. There are no laws limiting the number of people being sued OR the number of people suing in a particular suit, as long as the issues are the same or nearly the same (this brings in issues with joinder and pendent or supplemental jurisdiction, but it's still all about personal jurisdiction). There's no good interest to be served for passing a law like that, and would possibly be unconstitutional anyway. The only issue (wrt to the number of parties, aside from standing issues) is whether the court has power over the parties (personal jurisdiction). It just doesn't matter that 500 people/corporations want to sue 1 person/corporation, 500 people/corporations want to sue 1 person/corporation, or even 500 people/corporations want to sue 500 other people/corporations.

          The earlier post to which I'd responded said that there would/should be a difference between 500 people suing a corporation and one corporation suing suing 500 people. Clearly, there's no problem with that -- one person could certainly sue 500 corporations, no? The number is irrelevant.

  • parallel case to Dow Jones and Australia one... (Score:1, Insightful)

    by Anonymous Coward
    This looks like the first US case to take up the same jurisdiction topic (suing in a jurisdiciton where the defendant has no presence) as Australia's High Court (this earlier Slashdot story http://yro.slashdot.org/article.pl?sid=02/12/10/00 19232&mode=thread&tid=123). If the US Supreme Court follows the reasoning of the Australian High Court then the DVD CCA will win their argument...
  • I'v had the DeCSS code up on my web site here in California for almost 2 years now I think. It is insanely easy to find on the net as well.
  • That has been mentioned a thousand times, but is still pertinent here: fair use should mean that I can play the DVD I paid for on the device of my choice, so long as the decoder does not directly faciitate copying (which would violate copyright laws). I should even be able to back up an encoded disk (once), but not within the constraints of fair use, within the constraints of the fact that the video stream on the DVD is sort of like a computer program and data, which I have a right to back up.

    Unfortunately, even if I have a non-supported device that I can program a decoder for, the DMCA reverse engineering clauses make it a federal crime to do so, which is why the DMCA is a very poorly written piece of legislation --unless of course you happen to support the MPAA movie cartel.

    Hence the controversy over DeCSS.

  • This preliminary decision does not mean that the US Supreme Court has decided to hear the case. They may or may not. Personal jurisdiction has changed quite a bit in the last 20 years. Personal jurisdiction and the Internet is a relatively new legal topic.

    If the court hears the case, they will almost certainly overrule the California Supreme Court. The trend of the US Supreme Court has consistently been to increase the scope of personal jurisdiction. The case will then be remanded back down to the trial court, the Santa Clara Superior Court.

    If the court does not hear the case or affirms the California Supreme Court, then the suit is still not over. The RIAA can then restart the entire suit in Texas.

    No matter how you look at it, the RIAA either comes even or on top.
  • It's my understanding that you can't get sued for knowing a trade secret. You can get sued if when you violate a contract by spreading a trade secret or if you use a trade secret for profit.

    Clearly Pavlovich didn't violate a contract. I don't think he used it for profit either. And since no one violated a contract to write DeCSS then it still wouldn't be illegal even if he did make a profit.

    I thought that it was interesting that DeCSS was linked to on cnet. Clearly they feel the same way. :)

  • The Supreme Court is not "taking up" the case. Justice O'Connor granted an interim stay to consider whether a longer one is necessary. Today, she dismissed that stay and declined to impost a longer one.

    See this AP story [washingtonpost.com].

    Whether the AP takes up the jurisdictional question in the case is another issue, yet to be decided on, and even if it does take it up, it is just that, solely a jurisdictional issue.
  • AP Wire is reporting that Justice O'Connor just lifted the stay she imposed last week. This story seems to contradict the CNET story:

    http://www.nytimes.com/aponline/national/AP-Scot us -DVD-Encryption.html

    Excerpt:

    WASHINGTON (AP) -- Supreme Court Justice Sandra Day O'Connor on Friday threw out an emergency stay that barred a former webmaster from putting DVD decryption programs on the Internet.

    O'Connor had imposed the stay last week, at the urging of a group that licenses software to film studios to block the illegal copying of DVDs.

    New York attorney Jeffrey Kessler said the association fears that Matthew Pavlovich will repost programs that help people duplicate movies for free.
  • As of today Justice O'Conner has rescinded the stay [com.com] and the California Supreme Court ruling will stand. The case in california is effectively over. Nothing prevents the DVDCCA filing an action in the defendant's home state of Texas though. However this was obviously not their preferred option in they were prepared to go to the Supreme Court to keep the case in California.

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