DeCSS Injunction Ruling

Anonymous Coward writes "This morning, Judge Lewis Kaplan of the Southern District of New York issued his memorandum opinion explaining his decision to grant an injunction against people publishing the DeCSS source code. His ruling specifically finds that the Digital Millennium Copyright Act (which prohibits the publication of computer programs designed to circumvent copy protection) is constitutional, and does not infringe on the defendants' free speech rights. He also suggests that computer source code is not ordinarily a form of expression, and that, even if it were, Congress could regulate it in order to serve other interests, such as the economic interest of copyright holders. See 2600.com for news on the protest tomorrow night against the plaintiffs. "

The ruling is correct. :\

Unfortunately, the judge is correct. DeCSS is not, however much we might like it to be, free speech. Sure, the comments inside the code might be, but the algorithm itself is not.

The fundamental problem here is that the DMCA is corrupt. It makes illegal things that we think should not be. However, it is not this judge's position to decide if the law is moral, only if this action violates it. And it does.

The real question is, how did we end up with elected officials that passed a law such as the DMCA? Keep this issue in mind when you vote this November, and encourage others to as well.

Judge considers even playing a DVD Illegal

Did anyone catch footnote #14?

[...] even if DeCSS were intended and usable solely to permit the playing, and not the copying, of DVDs on Linux machines, the playing without a licensed CSS "player key" would "circumvent a technological measure" that effectively controls access to a copyrighted work and violate the statute in any case.

IANAL, but it seems to me that in one fell swoop this judge has just said that there is no such thing as fair use. Are there any lawyers out there who can say for certain if I am correct in this assumption?

anecdote

I live just outside our nation's capitol and I work in IT, I was discussing the DeCSS flap with a mixture of Techie and Non-techie friends. I said "What do you guys think of this DeCSS (I pronounced it Dee-see ess ess) stuff?" A non-techie friend responded "What is that? The new capitol Gestapo?"

Um, does not circumvent copy protection

Um, isn't the whole basis of the defense that merely cracking the CSS does not circumvent copy protection, because there /is no/ copy protection, unless of course you consider regional coding "protection", which itself is illegal by international law???

Hummm?? Anybody??

Jazilla.org - the Java Mozilla [sourceforge.net]

Re:A Fair and sane ruling

Easy to argue. The difficulty seems to be making you aware of the fact that this program does nothing to promote the ability to copy a DVD. The DVD related industry is just pissed off that this code is exposing their monopoly control scheme whereby they will be able to prevent upstart competition in both movie/music production, as well as in player manufacturing. They don't like DeCSS, but the reason they don't like it isn't because of the asserted copy features, but rather, because they no longer can control who gets to view their bought and paid for DVDs, and who doesn't.

The argument that computer code is an expression of free speech, however, is an old and tired one. It should not have been used. The proper argument should be that this is a tool to play DVDs, not to copy them.

I don't get it.

Part of the ruling says that the judge doesn't believe the defendants proved that cracking CSS could help play DVDs under Linux. Why? Because you can already play DVDs under Windows, and there are a lot more Windows machines than Linux boxen.

What? That's exactly why it was necessary! Evidently no one wanted to spend the money to by into the CSS scheme to provide a player for Linux. Why? Perhaps it has something to do with the perceived size of the market?

Perhaps for his next trick, the judge could explain why PBS (public broadcasting in the US) shouldn't need to beg for money every year to stay on the air because it has less viewers (and very few commercials).

--

Need to lobby for a Free Software Exception

If you ask me, the party to blame for this godsdamned mess isn't the judge, MPAA, or 2600. It's Congress. We are in a position where we need to prove that our product was developed for the *sole purpose* of running DVD's on Linux (if this were true, it wouldn't run on BSD, HURD, or Windows). Congress should have written the law so that the plaintiff has the burden of proof that the product is written for the purpose of copyright infringement.

We also need to lobby Congress for a "free software" exception -- that copyright infringement technologies can be reverse-engineered for the purpose of writing "free (open source) software", which constitutes an important part of our public infrastructure.

Let me be honest here...I'm about ready to give up writing software entirely if this bullshit continues. What's going on here could kill the Linux dream, and I don't want to go back to a world where computing isn't fun.

Re:A Fair and sane ruling

In this judge's opinion, it is illegal to publish or even point to the code for DeCSS, yet the U.S. Supreme Court has upheld the right to publish such other materials, as how to convert your semi-automatic rifle to full-auto. You can publish how to do it, sell parts to do it, but not do it! Why is one illegal and the other protect free speech? This is a case the *WILL* end up before the Supreme Court before it's over.

Definition of "Access" in DMCA

A lot seems to hinge on sentences like this:

Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.21 In consequence, the reverse engineering exception does not apply.

It seems that the law is ambiguous with the definition of "access" -- there is "access" to a DVD in that I can make a bitwise copy and now you have one, and there is "access" in that you need something to be able to understand it. Obv. DeCSS enables #2 but not #1 -- yet there's no distinction (or indication of awareness of such a distinction) in the law. This muddles the debate over what exactly the "piracy" argument is.

What I (and a good number of people, I'd guess) want to know is, why didn't the counsel for the defense make these sorts of piracy arguments? I am somewhat confused as to why the plaintiffs got away with the classification of CSS as "a technological system that controls access to other copyrighted works" -- although here you get into the ambiguity I just described. Kaplan ends up ruling that CSS protects content -- but it really only ends up protecting playback, since anyone with some equipment can copy but only people with "legit" DVD technology can play it back. As far as I can tell from the various hearings/rulings that have been posted, this distinction is never made clear by the defense! There's a lot of exemptions they try to invoke, but Kaplan's reasons for rejecting them do not seem out of line. In fact, he appears to do a pretty decent job of assessing what has been presented to him. Did the defense throw it all away by ignoring its best argument? The recent LinuxWorld interview with Jon J. had the same complaint; i'm just echoing it here.

Better lawyers needed?

Y'know, I was reading through the ruling, and peppered throughout was the phrase "the defendants offered no evidence to back up this claim" (or words to that effect). That suggests to me that the lawyers for the defendants are doing a poor job. Here they're saying that DeCSS's purpose was to provide DVD playback on Linux boxes, and they don't even prove it! That's the whole idea behind providing evidence: you can't say something and then not provide evidence to back it up.

It's almost as if a store accuses you of shoplifting a book, and then doesn't provide proof that you've got that book in your bag.

In any basic argumentative case such as this, you have to back up your claims, else your argument gets thrown out. It's pretty simple, actually.

Judge Kaplan is a pinhead

This decision is absurd.

What he is saying is that copyright holders can eliminate Fair Use through technological measures. This makes *no* sense whatsoever; it suggests that the law only applies to the technologically challenged.

If legal precedent means anything, it is common sense that technological impediments to Fair Use:

1. may legally be circumvented
2. are probably illegal prima facie (ooh, Latin)
3. could be construed to represent contempt of court

I'm fairly certain that this judge's idiotic decision will be promptly overturned.

New XFMail home page [slappy.org]

Re:Judge considers even playing a DVD Illegal

IANAL, but it seems to me that in one fell swoop this judge has just said that there is no such thing as fair use. Are there any lawyers out there who can say for certain if I am correct in this assumption?

Well, yes. This is the whole point. Under traditional law, copyright does not give copyright-holders the ability to restrict you in certain ways, such as restricting the sale of books you've bought (the "first sale" doctrine) or making a backup copy, or copying a small part of a work ("fair use"). Technology has now given copyright holders the technical ability to restrict those things, and the DMCA makes it a felony to produce a device which can circumvent them, and when the other part of the law goes into effect later this year, will make it a felony to circumvent them. So in theory, you have the right to resell or copy work you've bought - but technology can prevent that, and if you circumvent the technology, you're breaking the law. "Fair use" was never explicitly eliminated, but it effectively was.

Copyright law says you can make a backup copy, or play your cassette tape on any machine you want, but the DMCA says that using any sort of digital content in any way that the copyright holder doesn't explicitly permit makes you a felon.

Welcome to the new world of copyright.
--
Michael Sims-michael at slashdot.org

Re:It's not for copying

But they don't circumvent the copy protection because there simply is no copy protection. Just because it's encrypted does not mean it can't be copied - it just means it can't be played without decrypting it.

Have you actually read the DMCA? It doesn't apply to copy protection, but to _access_ protection! Under the DMCA, you _cannot_ legally circumvent a technological measure that "effectively controls access to a copyrighted work." It has been established that CSS doesn't prevent copying; it prevents _access_. You want to complain about the DMCA being unconstitutional, go ahead. Just keep in mind that copy protection is not what's at issue here.

By the way, I have an interesting application of the DMCA on my LiViD mirror... I'm calling the gzipping on the tarballs a technological measure that effectively controls access to the code within. It's as effective as CSS: anyone with the right tool can break it:)
--

Code Not a Form of Expression?!

Bah! Code has to be a form of personal expression and therefore should be protected by First Amendment.

The judge argues that code is not a normal form of personal expression. Works of art like books and scuplures are synthized in the same maner: an idea in the mind of a person modivates them to create. Even things like building furnature, baking cakes, etc are forms of personal expression.

Does Judge Lewis Kaplan think that some agency has rights to dictate what code a well minded individual can write? If he does, then said agency can also dictate how one can write books, make sculptures, build furnature, and bake cakes.

The law was never mind to do this. I certainly hope that another judge see this error and reverses this decision.

Real text to C Source converter

I've been following this story with interest. Why can't you guys just build a "real Text" to C converter. You know, turn it into real sentences (just substitute words for command/functions/whatever the hell C uses, spell out numbers etc).

It would seem to me this would clearly bring about the distinction you want. Any restrictions on it would be the same as restricting speech.

Worst case? They hold the "decryptor" is a "cracking tool that exists soley to 'steal' copyrighted material" under those absurd new laws. Fine, put the decryptor on a site in a country that doesn't do patents/copyrights and you're in business.
---

"It's the region codes, stupid."

What we need to do is hit them with a class action lawsuit on the grounds that region codes are artificially (and perhaps illegally) inflating the prices.

--

Re:Software isn't Expression?

Software can be considered speech, but it can also be considered an invention of some sort.

You need to distinguish between source and executable. (And yes, I know with interpreted languages that's a bit more subtle.) The, say, C language source code of some piece of software is no more an actual invention than is the text and figures describing a patented invention. Both are just descriptions of how to implement the invention (or in patentese, "reduce it to practise").

If the judge holds that source code is not speech (contrary to an earlier legal decision in a different district, as I recall), then it raises the question of where the line is drawn. Are detailed specifications for software speech? What if they're suficiently detailed and in some standard specification language that could be mechanically translated into a programming language (and thence compiled into machine language, which if loaded into the memory of an appropriate computer would constitute "reducing the invention to practise").

It probably wouldn't be hard to write a program that translated C (or whatever) code to unambiguous English text, and conversely translate such text back in to C code. (Even beyond just the obvious of spelling out the punctuation and numerics.) Would that English text qualify as speech?

This is shaping up to be something the Supremes will have a field day with.

(Insert usual IANAL disclaimer here.)

Re:The ruling is correct. :\

Unfortunately, the judge is correct. DeCSS is not, however much we might like it to be, free speech. Sure, the comments inside the code might be, but the algorithm itself is not.

I strongly disagree. I believe that programming represents a uniquely personal form of expression. Everyone would code that algorithm a little differently, and its entirely possible that the code itself can be perceived as a "statement" of protest (which is certainly expression).

The fundamental problem here is that the DMCA is corrupt. It makes illegal things that we think should not be. However, it is not this judge's position to decide if the law is moral, only if this action violates it. And it does.

Well, I agree but If my understanding of the legal system is correct, the judge was free to take it a step further and delcare the DMCA unconstitutional. Correct me if I'm wrong here, but I believe copyright provisions are spelled out in the constitution. It gives congress the right to protect the fair interest of those who would create something. I think the DMCA goes way overboard and starts lumping on powers to copyright holders which were clearly never intended to be done within the framework laid out in the constiution.

The real question is, how did we end up with elected officials that passed a law such as the DMCA? Keep this issue in mind when you vote this November, and encourage others to as well.

Agreed. Go to the congress webpage and find out how to contact your congressperson today. Find out how they voted on the DMCA and let them know how you feel about this isssue, and let them know how you are going to be voting when it comes november.

totally expected, unfortunatly

But lets take a look at what the ruling says:

In October 1999, an individual or group, believed to be in Europe, managed to "hack'' CSS2 and began offering, via the Internet, a software utility called DeCSS that enables users to break the CSS copy protection system and hence to make and distribute digital copies of DVD movies.

I don't think it's been "proven" that this is only to copy DVD's!! We know this isn't the only reason, therefore the use of the word "hence" really makes me uneasy. We can't even make copies for playback right now with a DVD-RAM, and you don't even need to break the encryption if you have a stamp machine. I can't beleive this was in the opinion, it sounds more like something the corporations would say.

The requirement of immediate and irreparable injury is satisfied in this case. Copyright infringement is presumed to give rise to such harm. In this case, plaintiffs do not allege that defendants have infringed their copyrights, but rather that defendants offer technology that circumvents their copyright protection system and thus facilitates infringement. For purposes of the irreparable injury inquiry, this is a distinction
without a difference. If plaintiffs are correct on the merits, they face substantially the same immediate and irreparable injury from defendants' posting of DeCSS as they would if defendants were infringing directly. Moreover, just as in the case of direct copyright infringement, the extent of the harm plaintiffs will suffer as a result of defendants' alleged activities cannot readily be measured, suggesting that the injury
truly would be irreparable.

So, if I read this right, just the fact that it makes circumventing it possible, this is exactly what is being done. This absurd statement makes me want to grab a bat and start breaking things. The last statement is incredible as well, equating "umeasureable activities" with "irreparable injury"? Am i missing something here? Someone tell me PLEASE....

One of his arguments for not accepting the reverse engineering argument bothers me as well:

Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.21 In consequence, the reverse engineering exception does not apply.

So is he saying the copyright software/system is not a copyrighted piece of software? Is he saying the situation is different for hardware? Doesn't that seem to be a contradicion? Anyone care to expand on this?

I haven't even read the rest of the opinion, because his opinion is plainly clear. His idea of a "level playing field" is this:

Corporations have all the rights and tell you what to do, and you can't do anything about it.

I'm not a big fan of capitalism, but the fact that he doesn't support reverse engineering takes things one step worse: without the ability to compete, we've gone from capitalism to a sort of corporate-totalitarianism.

This lack of respect for people's rights is unacceptable. Furtunatly, they can't do anything about it, short of throwing me in jail. When I pay my 20 bucks for a DVD, I'll do what I want with it short of redistribution.

Lets face it, in 3-5 years we WILL be able to copy DVD's, most likely for playback in DVD players (hopefully).

There might be no recourse for Hollywood, the cat is out of the bag, as many have said. Trying to stop technology that people like with artificial controls is tough, just look at the mp3s. Copyright holders will have to find a real, technology based way to prevent this, which might be impossible in today's world. I sure hope it is.

No, the ruling is not correct.

Unfortunately, the judge is correct. DeCSS is not, however much we might like it to be, free speech. Sure, the comments inside the code might be, but the algorithm itself is not.

Not true. Algorithms have been held up, in US federal court, as speech. Look at some of the cryptography cases and you'll see what I mean. Equally, the entire professional of mathematics would be enjoined from free speech protections if algorithms were not treated as speech. I think you misunderstand what speech is. Speech is not just words or text. Its not even just audio, video or anything else you can fit into a nice tidy list. Speech refers to expression in all its forms. Its a vague concept, on purpose!. This prevents tyrannants of all types from trying to squeeze speech into a nice tidy little bundle they can lock away.

So freedom of speech is not something relegated to text, but to all forms of communication. Be it a painting, a scuplture, dance, spoken words, written words, e-mail, scientific documents, mathematical formulas and even source code, which is a form of expression.

So, this judge is wrong, and hopefully he will either see the error of his ways, or a higher court will overturn his ruling. The bottom line is that this judge is but the first round, and there are plenty of appeals from here to courts which have seen thru this sort of hogwash before and made the right ruling.

Common sense will tell you that code is speech. How else would you express the idea?

You're right about one thing: The DMCA is corrupt. Its the biggest attack on the first amendment ever, and this case proves it. Its far more insidious than the CDA ever was (that was so patently unconstitutional that everyone knew it was going to get overturned), the DMCA on the other hand requires a thorough understanding of the issues (which most judges sorely lack) and hence makes it easy for someone to argue one thing, while getting someones freedom of speech rights enjoined. Its all nice and tidy. On the surface the case looks simple. Its too complex to explain to laypeople, and it lends itself to an emotional argument in favor of restricting speech rights. So the DMCA makes it really easy to control expression, without alerting the masses to the fact that they just got sold down the river.

The DMCA is corrupt alright, and we should work to get it ruled unconstitutional by any means necessary.
--
Python

The point is...

That the data scrambling feature of DVDs is NOT useful for copyright protection. It is only useful for controlling playback of the video. Just because the plaintiffs say that "it is" does not mean that it really is. So...if the encryption that has been cracked is not used for protecting against copyright violations but only for control of playback, how is the DeCSS code in violation of the law? There is nothing in the DMCA that says anything about engineering, reverse or otherwise, of compatible players illegal. In fact, it actually says that it IS LEGAL to reverse engineer a product in order to make another that is compatible!

Re:helping out. what can we do?!

This is so frustrating. What can average joe's due to help? I've bought the OpenDVD t-shirt, but what next?

It's been said before, but it bears repeating:
Join the EFF [eff.org]. Get a student/low income membership ($20), get a basic membership ($35) hell if you made big money on the Red Hat / VA Linux stock deals go all the way and get a visionary ($1000) membership. These guys are putting up the legal defense, and like it or not justice costs money in this country.

Let's remember that money isn't the whole deal, the more people the EFF can count as members the more clout it has with various government types. Who are you going to listen to, the group that says "well, we have a couple of members who show up every so often", or the group that says "We have 50,000 registered members." Size does matter.

Decryption (and not copying) violates the DMCA...?

The second half of Footnote #14 is perhaps the most interesting part of the whole ruling. It says: >...even if DeCSS were intended and usable solely to permit the playing, >and not the copying, of DVDs on Linux machines, the playing without a >licensed CSS "player key" would "circumvent a technological measure" >that effectively controls access to a copyrighted work and violate the >statute in any case.

That's interesting because it addresses an angle that most of ``our side'' has not covered. There have certainly been enough arguments that DeCSS is not an effective form of copy protection; but it is an effective form of control. Judge Kaplan' statement implies that, regardless of the original coders' intent, DeCSS is a way of maintaining access control (for the movie studios) at the read-and-display level -- and that this is indeed its primary function.

This small side note, if legally correct, changes the whole playing field. If CSS is not to be considered copy protection but rather access control, then DeCSS is illegal simply because it avoids the need to pay license fees for a reader, notwithstanding any argument about potential redistribution of the original material.

It is as though books came with diary-style locks, and duplicating the keys were illegal. Ludicrous in the non-digital case; but a matter of law in the digital case.

Stand up for your beliefs -- don't be afraid of what's gonna happen [deforest.org]

Re:payola?

I wonder what this corrupt bastard will do with his newfound wealth?

I've known judges, and while corruption can never be ruled out, I would not assume it here. Cluelessness is far more likely as an explanation, IMO. Most judges today still live lives in which they rarely touch a computer (ok, maybe AOL, but only at home) and most of them would be more likely to believe Jack Valenti than either one of us on this issue. Sad but true.
JMR

Re:It's not for copying

You are mistaken on a technical basis. The copy protection is not circumvented by DeCSS. A DVD and/or a CSS encrypted file can be copied without any form of decryption. By simply presenting the keys and the data to any player in exactly the same form that a DVD does, that player can play it. If that form is a duplicate DVD, then it can and will play it and this is a copyright violation.

DVDs are already being pirated. The pirates have obtained the DVD manufacturing equipment (perhaps by theft). Reportedly, one such operation is already running full tilt in Hong Kong. By taking a popular DVD and using it as a master (some processing involved there I am sure), and by copying each and every bit including the key tracks, a new exactly identical DVD is produced and that DVD looks no different than the original to the DVD player. It will index the keys, find the one with its ID, and begin the decrypt and play process using that copied key. This is all a copyright violation and a form of piracy. These clone DVDs are then sold on the black market, depriving the artists, and the investors in the production of the artwork, their returns. It also happens to deprive the original manufacturers of a scale of market but for that aspect I don't perticularly see a violation (although they do tend to be the same organizations as the investors).

Buying a DVD and using DeCSS to play it on the computer of my choice is NOT a copyright violation. Since I have a right (in the USA) to make sufficient personal copies for the purpose of usage (so long as I destroy all of them should I sell, or even lend, my DVD to someone else), then this is legitimate, and is not addressed by the DMCA at all.

Sure, DeCSS does enable one to make an unencrypted version of the DVD, which could be transferred to others over the internet. But DeCSS isn't required to do this. You can capture the audio and video output from an existing player (hardware or software) into a file and transfer that file over the internet. This would be a copyright violation just as much as cloning an encrypted DVD.

If the DVD industry had sanctioned a player program for Linux and BSD systems, which was distributed only in binary form, and would refuse to store decrypted files and only play them, then it could be argued that DeCSS only adds on the ability to create a decrypted file. Since they have not done so, DeCSS has a much more significant role (since statistics show that despite a lot of piracy going on, most people don't engage in piracy, even with media like CDDA that is trivial to pirate) in simply enabling the playing process.

DeCSS has opened our eyes, and potentially the eyes of government investigators, to the potential for the megacorporations to use CSS as a means to squash competitive upstarts (in both production of the artwork as well as manufacturing of players). If the DVD industry was on solid legal ground, they wouldn't need to have Jack Valenti making public pleas with lies about it being only for copying. Now people will see the mechanism by which CSS can not only be a potential anti-trust violation (they would have to actually do it, as the mere existance of the mechanism would not imply the violation), but also be a mechanism of selective price gouging. They need to silence and suppress this "leak".

...but software IS expression!

/me is not a lawyer, but...

You're correct. The case that jumps to my mind is Bernstein v. US DOJ. A college professor was prohibited from posting to the WWW the source code to programs in his class.

US Judge Marilyn Patel ruled that source code is speech, and that not allowing it to be posted to the internet is unconstitutional prior restraint of speech.

The_Morlock

Re:Judge considers even playing a DVD Illegal

Fair Comment. This brings up a few questions;

1) how can something like reverse engineering of (for example) Intel's chipset be possible, if its actually providing a place to play digital content (i.e. Windows, and its attendant apps)and obviously, they wouldn't want to you to copy the 'playing' mechanism?

2) Is this law retroactive to inventions that existed before the law's creation? (DVD predates DMCA, right?)

IA(definitely)NAL, and I'm feeling it right now.

-pbk

CSS as art? My artistic contribution to the cause

I have a bit of a serious question: is it legal to distribute the file in a form considered to be art?

I converted the css code to an html file that represents the OpenDVD logo. Take a look and see what you think. I'm not trying to violate the DMCA or anything, I'm just trying to express thoughts through what I consider to be art.

Here it is:

http://www.enel.ucalgary.ca/~mastracc/opendvd.ht ml

Thoughts? :)

Re:Outside USA - are we making a good case?

I have a concern about this case - I think it's a little more serious than the possibility that the judge is biased or un-knowledgable about the technical issues here - and that is that despite all the enthusiasm and EFF support, the defendants just aren't making a good enough case.

Think about it - the plaintiffs have a lot of money. You know they have five-star lawyers, and they may have even had a certain (limited) amount of sway over the court itself. Needless to say, anyone from the industry who was expecting to speak at any of the hearings has been thoroughly briefed by the legal team - ensuring that everyone on the plaintiff's side tells the same story in the same way, relying on the same legal precedents and avoiding contradiction altogether.

Now, I have no way of knowing if the defendants are really disorganized or poorly represented - but my impressions on this are based on the judge's statements and have gradually built into fears about this case. :) From the statement I get the impression that more often than not, the defendants, <b>right or not</b>, are defending their positions poorly - both from a legal standpoint and a purely argumentative one. The judge's statement mentions repeatedly that the defendants failed to support various assertions in their positions - assertions many of us have probably made ourselves, particular, I expect, to a particular segment of computer-enthusiasts - if we agree with the defendants' position, the jusge and plaintiffs seem foolish - after all, how can they not understand that DeCSS is an interoperability tool? But the judge works in terms of law. If the defendants aren't prepared to state their position with a solid legal basis, they'll fail to convince the judge that there's a legal justification for their position, and may fail to convince the judge that the defendants' position is justifiable in any sense at all.

Sadly, it's not the judge's responsibility to relate to every subculture's ideas of right and wrong - it wouldn't be practical anyway, and we're a bit egocentric to think that a judge is un-knowledgable about the subject of computers if he/she doesn't agree with us. I'm concerned the defendants just aren't making a good enough case at this point. I really, really hope the defense is gonna wise up, if this is really the problem for them (and us) that I think it is.

It seems as though the defendants need to demonstrate that this <b>is</b> an interoperability issue, <b>why</b> DMCA is a bad thing... support their positions...

I don't relish the idea of losing this one.

---GEC
(If DeCSS is outlawed, only outlaws will have DeCSS)

More points to ponder...

In October 1999, an individual or group, believed to be in Europe, managed to "hack'' CSS2 and began offering, via the Internet, a software utility called DeCSS that enables users to break the CSS copy protection system and hence to make and distribute digital copies of DVD movies.

I don't think it's been "proven" that this is only to copy DVD's!! We know this isn't the only reason, therefore the use of the word "hence" really makes me uneasy. We can't even make copies for playback right now with a DVD-RAM, and you don't even need to break the encryption if you have a stamp machine. I can't beleive this was in the opinion, it sounds more like something the corporations would say.

Firstly, it most certainly is not the only way to pirate DVDs, but, as at least one pirate admitted, it certainly is the easiest. However, the judge's wording implies that this is DeCSS's only purpose. He further states that no evidence to the contrary (that DeCSS is used for linux-interoperability) has been presented. I'd like to know why not. Did the defense really think the judge would take their word for it? Where was the laptop running linux that couldn't play DVDs until software based on DeCSS was installed?

As there is no evidence of any commercially significant purpose of DeCSS other than circumvention of CSS, defendants' actions likely violated Section 1201(a)(2)(B).

This makes it painfully obvious that the judge has no understanding of the Open Source movement. Of course there is no commercially signigicant purpose; who's going to pay for OSS when it is freely (speech AND beer) available? Besides, the primary intent of DeCSS (unless you believe the judge) is to allow viewing DVDs that have already been bought under linux.

But wait, the judge doesn't buy the whole linux argument in the first place:

[E]ven assuming that DeCSS runs under Linux, it concededly runs under Windows---a far more widely used operating system---as well. It therefore cannot reasonably be said that DeCSS was developed "for the sole purpose'' of achieving interoperability between Linux and DVDs.

[A]ssuming that DeCSS runs under Linux...??? Where has this guy been??? Oh, wait, I bet he doesn't read SlashDot, does he? Anyway, if the defense had done its job, there would be no assuming this or that about DeCSS and Linux. Secondly, he completely misses the point about programs "running" under operating systems. It's computer code. Download it, compile it, and *poof* it runs on your computer. (The complete lack of proprietary MicroSoft foundation classes, libraries and 'extensions' of standards might be a clue that it was developed in a *nix environment!) Finally, where does he get off deciding what was going through the head of the anonymous German hacker who actually wrote the program? How does he know the intent with which the program was developed? Sure, some people may use the program for illegal gains, but that isn't what the judge is apparently concerned about here. Apparently, I can claim that I developed something with one purpose in mind, but if someone else finds a malicious use for it, that is somehow my fault. I think not! Otherwise, gun and/or bullet manufacturers would be held accountable for every firearms-related homicide.

Finally, I think the judge misses the point in the paragraph in which he quotes the following from the DMCA:

"a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs . . . to the extent that any such acts of identification and analysis do not constitute infringement under this title.'' (Note: my use of bold.)

This statement specifically refers to reverse engineering computer codes that have been legally obtained. The point of the matter is that it is not clear whether it was an encryption algorithm that was reverse engineered or if the algorithm was discovered by "hacking" the Xing encoder. Maybe this point wasn't made clear enough in the hearing. (I won't even go into the argument about the legal status of click-through licenses. Suffice it to say that I've never read through one... I'll just make this point: how does paragraph reconcile with licenses explicitly forbidding reverse engineering? Which right trumps the other?)

Overall, from the judge's repudiation of the defendants' claims, it is clear that 1) the judge knows little about technology and 2) the defense did little in the courtroom to back up their assertions. Since this was merely the issuance of preliminary injunction, there will be further opportunities to back up the claims of the defense. I just hope they are more prepared then than they were last month.

Of course, having more than one weekend notice might help matters a bit...

Eric

Re:Mostly, I'd agree, except

As far as piracy goes, there's no doubt something like DeCSS might be useful if you had swiped a supply of blanks and had plenty of time on your hands to knock off one or two copies, but DeCSS as far as I can see is neither technically necessary nor sufficient for DVD copying.

To copy a DVD successfully to another disc capable of being played in a DVD player you would NOT use DeCSS AT ALL, and here is why:

1. Consumer available DVD blank discs currently only hold 4 GIG of data, most DVD movies run about 6 to 10 GIG.

2. Consumer available DVD blank discs have the tracks where the DVD player expects the CSS keys to be PRE-WRITTEN with 0's.

3. You don't want to break the encryption, you NEED the encryption IN PLACE, as DVD players will NOT play unencrypted DVD movies, they expect CSS and will not play if it is not there.

The absolute only way to copy a DVD disc so that you have two DVD player readable identical discs is to get your own stamping machine, and you would make a bit-for-bit copy with the encryption IN PLACE, as DVD players expect CSS to be there, these run into thousands of dollars, not really economical if you're only making a few copies for friends huh? However they are economical with big pirates in Asia for instance.

-- iCEBaLM

Re:CSS as art? My artistic contribution to the cau

Hmm.. I like it. (-;

Ok, what if we took the source, and encoded it with a scheme SIMILAR to CSS. THEN distributed it widely witout keys, making sure that it's true nature (the source) is well known.

The source is intellectual property. If the MPAA's hired goons want to prove that the source is contained withing this stream of encrypted characters, they would have to violate the DMCA in order to get inside.

What do we think?

This is probably posted too late to get moderated up, but hopefully someone with some insight will see it way down here. (-;

Re:Code Not a Form of Expression?!

Bah! Code has to be a form of personal expression and therefore should be protected by First Amendment.

You should read that First Amendment again. It protects freedom of speech. Over the last generation, the courts have read a lot of meaning into that phrase, but to my knowledge they haven't gone anywhere near establishing protection for something as vague, broad, or open ended as personal expression. Colin Ferguson sure didn't find any Constitutional protection for his personal expression of rage when he shot several passengers on a train.

The small amount of case law supporting the position that source == speech is very fresh and tenuous. It's worthwhile for the defendants to cite any precedent which supports their side, but it's a mistake to rely on source == speech as the central support for their defense.

Re:Code Not a Form of Expression?!

That was exactly my first thought: ***NOT*** a form of EXPRESSION? Excuse me, if it is not a form of expression, then why is computer source code protected under the United States Copyright Act as well as under the International Berne Convention for copyrights? Aren't copyright laws designed to protect copyright holders' rights to their forms of expression????? This Judge wouldn't know the law if it came up and slapped him in the face!!!

And I don't buy the argument about programs being used to infringe on intellectual property rights. Xerox machines and tape records can be used to infringe on IP rights, should be ban those too?

Re:Need to lobby for a Free Software Exception

f it's moral for you to write a OSS DeCSS program, then it's moral for me to write a binary only DeCSS program.

The question is not one of morality. The question is one of legality. It is presently illegal to write an open source DeCSS, without explicit permission from DVD CAA -- permission which, frankly, I don't see them ever giving, because their technology relies on secrecy in order to "protect" anything.

It gets worse, by the way. You might not realize this, but this same ruling implies that Microsoft can go after anyone who tries to decode Word file formats. The file formats, after all, are not software -- they are a technology. Or at least that's how they could argue it. Once that's done, kiss KOffice and Gnome Office goodbye.

Returning to morality for a second -- if it is moral for me to write a closed-source version of a program, then is it legal for me to write an open-source version of that same program? Under the current system, the latter should be disallowed in many cases.

Re:Kaplan may be the best judge for this case

I'm fairly certain that this judge's idiotic decision will be promptly overturned.

There's absolutely no basis to challange this decision on appeal. This is just a preliminary ruling. One based on no evidence from the defense. The defense will have an opportunity to present a case with evidence and withnesses.

Furthermore, the EFF has been given a big whack with the cluestick on where to take this case. In reading the judgement, there is definately room to convince this judge of the merits of our case.

A friend of mine who works for the Federal Court system tells me that Judge Kaplan is one of the technically savvy judges in the district. Furthermore, he also tends toward the little guy.

Don't get me wrong, but there is enough wiggle room in this decision for the EFF to put up a good defense and get it past this Judge. If necessary, there is time later to discuss these same issues again in appeal.

This case will be heard.

Anomalous: inconsistent with or deviating from what is usual, normal, or expected

Re:Common sence? Don't identify yourself.

I can think of a number of good reasons to put your name on your code. First of all it gives it credibility. If I take responsibility for a program that I have written by putting my name on it, that indicates that I feel that the program is legitimate and has a fair and LEGAL reason for existance. If I chose not to put my name on it, that indicates that I do, in fact, have something to hide.

Another reason to take responsibility for your code (besides the obvious ethics of taking responsibility for your actions) has to do with the way the US legal system works. Disclaimer: I'm not a lawyer so I could be wrong about part of this. By putting their names on DeCSS people allow themselves to be named as defendants in the suit. Many of us feel that the actions of the MPAA are unethical, and not entirely legal. This gives those named a chance to challenge the MPAA on legal grounds.

I think this is a clear case of large companies exerting FAR too much influence on government at the expense of private citizens. It is also evidence of the inadequacy of current courts to deal with technological issues. Reading the opinion, it was blatantly obvious that the Judge knew almost nothing about what he was talking about.

Unfortunately, from the opinion, it also sounded to me like the defense attourneys were not overly competent either. I find the whole situation to be incredibly frustrating.

Cheers,
Perrin.

Time to stop whining and start working

I may not like the way that the MPAA is handling this, and I would *really* like to see a DVD player on Linux. However that does not blind me to the realities of the situation. It is time to stop whining, calling the judge a fool or worse, and offering repetitive amateur legal arguments and get to work changing the situation. We need to realistically assess:

1. the current situation
   
2. what we want to accomplish -- our goal
   
3. what we can, and will do to accomplish that goal.
   

The Current Situation

The judge is not clueless, and the lawyers from DVD CAA are not liars -- In this case we (the open source community) simply blew it by not figuring out how to deploy the resources to defend ourselves.

Brief credentials statement: I Am Not A Lawyer, Nor Do I Play One On Television; but I was a courts/copshop reporter for several years in the 1980's and have the general knowledge of copyright/IP that a journalist and a programmer picks up.

Read the transcript of the hearing, then the decision. The defendants and their lawyers were given nearly a week's notice of the hearing and arrived badly organized and with little if any evidence. As Judge Levin noted (by my count) eight different times in his decision, defendants presented no evidence to back up their arguments, while the plaintiffs (DVD CAA) had lots, including, IIRC, the transcripts of discussions here on Slashdot. The defense was just not ready to do the job. Two thirds of the legal staff there was from EFF in one form or another, but from the transcript it looks like they had not been able to spend a lot of time on the specific case ahead of time -- Judge Levin found (for good reason in some cases) a number of their arguments irrelevant to what he had to decide.

In reaching the decision, Judge Levin pointed out real weak points in the defence case. The core problem is the "reverse engineering" argument that gets used around here a lot. Here's the relevant portion of the opinion:

b. Reverse Engineering Exception
Defendants claim also to fall under Section 1201(f) of the statute, which provides that, notwithstanding Section 1201(a)(2)-

"a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs . . . to the extent that any such acts of identification and analysis do not constitute infringement under this title.''

They contend that DeCSS is necessary to achieve interoperability between computers running on the Linux system and DVDs and that this exception therefore is satisfied. This contention fails for three reasons.

First, defendants have offered no evidence to support this assertion.

Second, even assuming that DeCSS runs under Linux, it concededly runs under Windows---a far more widely used operating system---as well. It therefore cannot reasonably be said that DeCSS was developed "for the sole purpose'' of achieving interoperability between Linux and DVDs.

Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies. In consequence, the reverse engineering exception does not apply.

Pretty devastating, legally. They really didn't present any evidence to support their arguments, but the defendants lawyers did apparently admit that DeCSS worked on Windows as well (is this true?) so is not exclusive to Linux (so much for it being just for playing DVDs on Linux), and the reverse engineering exemption is explicitly not applicable here.

Our Goals

Do we want to get a Linux DVD player, or do we want to get rid of or modify the new copyright law? These are two different goals, with two different sets of actions to carry them out. As others have pointed out, if all we want is Linux DVD, then it is probably only a matter of money -- sombody call Larry at VALinux.

Action
If you want to change the law, learn and use the tools that are needed to do the job.

• Join EFF and contribute, generously;
  
• make sure your friends and family understand this issue -- dont rant, just answer their questions simply -- (we could use a good advocacy HOWTO on this);
  
• put the CAFE sticker on your web site;
  
• without making an enemy, let your boss and the suits know about this issue, and how it could harm your business (for example, see the Motley Fool article on this);
  
• Join EFF and contribute generously;
  
• learn how to lobby -- its not that hard and we are the real experts in this area;
  
• Join EFF . . . etc.
  

Groups of people get the law changed all the time -- but it takes attention to detail, advanced social skills, persistence, and some money. We can do it if we really want to.

Are we going to defend pirates now?

How many people who've posted in this thread have actually looked at one of the sites in question, dvd-copy.com [dvd-copy.com].

Can anyone really claim that a site with headlines like:

How to find/trade FREE DVD Movies online

and

What you need to trade Moviez online

is only interested in playback under linux? This is a site about pirating!

I'm all for DeCSS distribution, but this site isn't helping our cause. Championing this case is like the NRA championing a murderer as an example of responsible gun ownership.

COPY protection != COPYRIGHT protection

Two issues.

First, there is a lot of confusion here between the notions of COPY protection, and COPYRIGHT protection. This is no accident. One of the tactics of the MPAA is to attempt to equate the two in people's minds. To say, in effect, "We must have copy protection, otherwise our copyrights are unprotected." This is COMPLETELY untrue. Their copyrights are every bit as protected now as they were before DeCSS was written. If you make an unauthorized copy of a DVD, their legal standing to sue you is unchanged by the existance of DeCSS.

COPYRIGHT protection is a monopoly, granted by the government, giving you the exclusive legal right to duplicate a work.

COPY protection is a technological measure used to prevent third parties from duplicating a work.

You can have copy protection on something that is not copyrighted, and vice versa. This does NOT equate the two concepts, as the MPAA would like you to believe. Please do not play into their hands by accepting their distortion and melding of the two, completely independant concepts of copyright and copy protection.

Second, the DVD consortium had two options in the design of CSS. They could have either based their copy protection system on a patent, and disclosed the patent. This would have prevented third parties from legally creating their own DVD players. Instead they chose to rely on keeping their copy protection a trade secret. Unfortunately, they were not successful in maintaining their trade secret. Now they are arguing that they should receive patent-like protection for their broken trade secret.

They should not receive this protection because they did not disclose their invention. This is the entire purpose of a patent. You have a choice whether to publish, and receive a government monopoly, or maintain the secret, and take your chances that someone will reverse-engineer your trade secrets. The fact that the DVD consortium has based their entire copy protection on a poorly-kept trade secret should not change the legal status of that trade secret. It was broken, and the reverse-engineered DVD specification has entered the public domain.

If this interpretation of the DMCA is allowed to stand, it will in fact eliminate the entire concept of fair use. Given that traditional media will be eventually replaced by digital media, all of which will be presumably copy-protection enabled, under this interpretation it will become ILLEGAL to attempt to save a web page, capture a video or audio stream, or even videotape a broadcast, so long as the content provider has made even the most basic, ineffective effort to hinder you from doing so.

The DCMA has a lot of bad language. One of the worst bits is the notion of a device "effectively" controlling access to a copyrighted work. What does it mean to "effectively" control access? CSS "effectively" controlled access until DeCSS was invented. Now CSS is an ineffective protection scheme. The mere fact that a television broadcast was transmitted and received in real time "effectively" prevented duplication of television programs, until the VCR was invented. Should the VCR have been made illegal because it overrode an "effective" copy-protection method? Should the photocopier have been outlawed because it overrode the "effective" copy-protection method of a book being printed on paper? How much poorer our culture would have been.

This is the real threat posed by this court case. It is VERY important. It is the most important case I have seen in years. The rulings on this case will determine the very meaning of fair use in the digital age. It will determine whether or not the DCMA has eliminated the concept of fair use, as the MPAA is claiming, or not.

Fundamental Inconsistencies in this Opinion

I have only given the opinion a brief review, but I see at once an obvious failure of reason.

The opinion inconsistently found BOTH that: (1) DMCA anti-circumvention is constitutional because the Copyright Act has been found to be constitutional; and (2) Fair Use does not apply because DMCA anti-circumvention provision does not incorporate the Copyright Act provisions for a fair use defense.

It is certainly the case that the Courts have been kind to Copyright laws when defendants have raised First Amendment-based defenses, and in particular, that the Courts have found that the LIMITED monopoly granted by the Copyright Act does not fall afoul of the First Amendment (particularly given the force of Article I, Section 8 -- the Copyright Clause).

However, most judicial discussions of First Amendment constitutionality of the Copyright Act make reference to two specific facts: (i) that Copyright protects particular expressions, and does not protect ideas; and (ii) that the scope of a Copyright monopoly is limited to the extent a fair use defense is offered.

If the Court wishes to rely on this authority, it must then consider whether the DMCA protections offer both protections for Society. In fact, it fails in each case:

DMCA UNCONSTITUTIONALLY PROTECTS FOR AN UNLIMITED TERM IN PATENT-LIKE FASHION AN APPARATUS THAT MIGHT NOT ITSELF BE PATENTABLE

Let's be real, DMCA anti-circumvention protects the mechanism for protecting a work, not the work itself. DeCSS attacks the mechanism, not the work. This mechanism might be routine, un-novel and wholly obvious (hence unpatentable), yet DMCA would nevertheless protect it. And, so long as the underlying content is within its term, DMCA protects the mechanism FOREVER. (A patent would be limited to at most 20 years).

Thus, DMCA actually gives IDEA protection for the decoding apparatus for a security scheme, for an unlimited term, and (as noted below) without adequate protection for fair use. Indeed, I think an even stronger argument of unconstitutionality would be one based upon Article I, Section 8 -- this bill grants de facto super-patent rights (which also may not protect ideas) to an apparatus without any term limit, and thus violates the requirements of the Constitution that the grant be for a limited time.

(N.B.: I am not advising anybody to do so, I am only wishing those were the facts of this case -- it might very well be illegal to do so as this law seems to be developing in the Courts).

IF DMCA DOES NOT HAVE FAIR USE READ INTO IT BY JUDICIAL CONSTRUCTION, THEN IT IS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT BECAUSE IT DOES NOT HAVE FAIR USE LIMITATIONS.

The Fair use provisions of Section 107 were not originally made by the Congress. The Courts read them into the 1909 Copyright Act out of equitable fairness (and because of the First Amendment issues arising from suing a critic for quoting an article). Section 107 expressly stated that it did not replace, but merely codified the existing case law. If the Court decides not to read those cases into the DMCA, it can not AT THE SAME TIME, ignore the Constitutional implications on the ground that the DMCA is "just like copyright."

Again, we needn't investigate whether the DMCA is unconstitutional for these reasons -- its just that if the Court is going to rely on the similarity and Constitutional status of the Copyright Act itself under existing case law -- it must ask if DMCA satisfies those parameters.

None of the preceding is well-researched, or even carefully considered. But the inconsistency (and unfairness) of this reasoning struck even me between the eyeballs. (And you guys know what a hard-assed pro-IP guy I am.)

It already exists.

Accurate language to inaccurate language (and back) translator c2txt2c
http://personal.sip.fi/~lm/c2txt2c/ [personal.sip.fi]

Created for precisely these reasons, actually. To demonstrate that source code is speech.

Re:Time to stop whining and start working

Ok, so this was created in order to play DVD's on Linux, and it just so happens to work for windows as well.

Actually, that's not correct. The initial release of DeCSS was a windows-only binary, which would rip DVDs to huge MPEGs or some other non-encrypted format. Only later was the code released and ported to Linux, where it began to be used as part of the LiViD project to create a DVD player for Linux.

This history of DeCSS could make claiming the reverse engineering exception difficult...

Re:Code Not a Form of Expression?!

Dude, if wearing an armband to protest the Vietnamm war is considered free speech, then writing an encryption program to protest laws against strong encryption should be considered free speech.

Shooting people tends to infringe on their freedoms as well, and is therefore treated somewhat differently. If I got together a bunch of people who wanted to protest laws against assisted suicides, and shot them during an art presentation, I'd probably be arrested for murder, but at least the trial would be interesting. (Can you kill someone with their consent? Probably not, legally, but if you can prove it, it isn't murder, IMO)

However, any other "shooting people" example doesn't necessarily apply. All you're saying is that cracking wouldn't be protected speech, not coding.

You're right, source == speech isn't a tried and true defense, and I wouldn't want to use it as one. However...

Speech is speech. Transcribed speech is speech is text. Text on paper is text on a disk is speech. Speech is information. Code is information, can be spoken, and can be text on a disk... Math is not patentable, and code can be expressed as math...

The lesson, boys and girls, is to protect your code, you need to first have a recorded tape or transcription of everything you want to code in math, BNF notation, English, or some combination, until the laws and lawyers catch up with the reality of the situation, and what is obvious to the programmers. :)
---
pb Reply or e-mail; don't vaguely moderate [152.7.41.11].

Yep, it *is* illegal

In fact, the Library of Congress suggests that bypassing protection to copy is protected under the DCMA, but bypassing protection to view is illegal:
-----------------------------
The Library of Congress interpretation of the DCMA
From http://lcweb.loc.gov/copyright/legislation/dmca.pd f
Emphasis changed for this audience.

Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention itself, the provision prohibits circumvention in the first category of technological measures, but not the second.

This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumvention of a technological measure that prevents copying . By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized acess to a work, the act of circumventing of a technological measure to gain access is prohibited.
-----------------------------

Later on, seven exceptions to the circumvent-to-view are mentioned -- the right of the Library of Congress to make exceptions through rule-making; for library, archive, and educational nonprofits to decide if they want to buy the work; reverse engineering of computer programs for compatibility purposes; encryption research; protection of minors; personal privacy; and secruity testing.

Frankly, if my interpretation of the LoC's interpretation of the DMCA is correct, our best argument is that css-auth/DeCSS has as its primary purpose the creation of backup copies, not the playing of DVDs.

Steven E. Ehrbar