Supreme Court to Take Up DeCSS Case

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."

Fair use & reverse engineering

[bolsh]

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.

ReCSS

[jamesjw]

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 :)

Outmoded business model

[Peyote Pekka]

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Seditious groups like the RIAA/MPAA are fighting a losing battle to try to back up outdated business models with legislation.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.

Predictions...

[assaultriflesforfree]

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.

NOT a DeCSS Case!!!

[ca1v1n]

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.

Re:what about my backups!

[MImeKillEr]

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.

Re:what about my backups!

[angle_slam]

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:Fair use & reverse engineering

[grahamm]

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.

Re:what about my backups!

[swillden]

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:Fair use & reverse engineering

[Rick the Red]

(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.

Disney says you don't need backups

[swillden]

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."

Re:ReCSS

[captaineo]

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...)

Re:what about my backups!

[angle_slam]

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.

Fair Use & backup copies, a bit more

[CodeShark]

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.