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DVD/DeCSS: MPAA Wins In New York
from the good-guys-finish-last dept.
A quote from the conclusion:
VI. ConclusionIn the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.
Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era.
Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs? favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment. Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory relief.
SO ORDERED.
Dated: August 17, 2000
Kaplan sneers (Score:3)
talented young man and a member of a well known hacker group who viewed "cracking" CSS as an
end it itself and a means of demonstrating his talent and who fully expected that the use of DeCSS
would not be confined to Linux machines. Hence, the Court finds that Mr. Johansen and the others
who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player
if, indeed, developing a Linux-based DVD player was among their purposes.
Accordingly, the reverse engineering exception to the DMCA has no application here."
I wonder what the application to LiVid will be.
Re:bahahahahahaha! (Score:3)
it is already possible to copy the media bit for bit and write another copy of DVD to play in any normal DVD player (i don't keep up with DVD writable stuff, but if that capability isn't already there, it will be). all that the encryption protects against is:
a) playing the media with DVD equipment/software that is licensed and has a decryption key.
b) getting perfect copies of the video contained on the DVD (most DVD players have digital out, so we could get that anyway -- granted, in some cases the precision/bitrate coming out the digital outs is not as good as is actually stored on the DVD). right now, we can *still* get pretty good copies
of the video just from SVideo capturing or, if such a way exists, capturing from the component outs of any higher-end DVD player.
SO. the encryption does *nothing* to limit/restrict/hinder copying of the DVD movies themselves. they can put all the encryption they want on it, joe blow pirater can still rip the DVD and put it on a website for others to download and burn their own copies. about all that it prevents is repackaging the video/audio, or using perfect copies of the video in some other context other than the movie. how much could that matter in comparison to the DVD sales which is not impacted by the encryption?
so that doesn't seem like a viable reason for them to make all this up (am i missing something on that angle??).
so, and i'm certainly not the first to point this out, it seems that all they're protecting is the DVD player makers.
Re:Real Impartial (Score:3)
That's essentially the claim that most of the "information wants to be free" crowd uses though. They say it's mathematically/physically impossible to prevent people from copying the data, so there shouldn't be laws against it. In other words, "information should be available without charge to anyone clever enough to [get it]". Yeah, they probably wouldn't use the term "break into" (like thge ruling), but rather somethiung that means the same thing but sounds more benign...
Now before I get flamed, I should point out that I don't agree with the ruling. (oh, and IANAL) I think the DMCA goes way too far. I think that copyright protection doesn't need legal protection. Copyright alone should be enough. If people use DeCSS to illegally copy DVD's, then go after them. People using DeCSS for fair use aren't doing anything wrong. So in other words, DMCA is unnecessary, and makes things illegal that shouldn't be.
Unfortunately, because of the boneheaded way American law works, once a law is passed, you pretty well can't get rid of it unless you can prove that it's "unconstitutional", and likewise, you can't create laws that conflict with the constitutional dogma...
Let the flaming begin!
Information doesn't want to be strangled. (Score:3)
People in a democratic society need to be able to exchange information. A vibrant culture needs artists that can build on each other's work and that can reuse cultural icons (as we know from several hundred years of experience with the arts and culture in Europe). A society and culture in which every bit of information and every cultural icon is owned in perpetuity by corporations with specific financial interests and concerns about their "brand image" is a dead end.
It is this tradeoff that is at the core: should we put corporate profits over the interests of our society? Or should we be conservative and return to the roots of copyright law: to fair use provisions that allows individuals to use content, build on each other's ideas, and reproduce content for scientific and analytical purposes, and to limited (20-30 years) protection?
To me, the answer is pretty clear. Kaplan is right that this needs to be done by the legislative branch, not by the judicial branch of government, but without a serious political finance refort, that is unlikely.
You knew there would be an appeal. (Score:3)
It looks like this judge is ruling merely on the merits of the DMCA as passed by Congress, rather than considering the larger question of whether the law is constitutional. Perhaps at this level of the legal system the judiciary is unwilling (or unable, IANACS (constitutional scholar)) to overturn a federal law as unconstitutional. I think it was pretty clear on the basis of the past few months activities that this case would go against the defendants.
The DMCA itself is bad enough, but the upholding of an injunction against the defendants linking to freely available information (well, at least until the hosting sites are also sued) is really troubling. I hope that facet of the case is an important part of the appeal as well; otherwise the New York Times and other major news venues will have to watch what they link to. If linking to a site with controversial content is prohibited, how about linking to a site that does the linking? For that matter, how about linking to AltaVista?
This ruling represents an unconscionable attack on the underpinnings of the Internet. The powers-that-be have won the first battle to halt the changes that are coming to the world they own; I hope that the EFF, Mr. Garbus, and other people of good will are able to win the war for freedom of information and the right to free speech online, even if it does hurt someone's bottom line.
</soapbox>
This is okay, we still have round 2... (Score:3)
Disclaimer: I'm not a lawyer, nor do i play one on television =:-0
Re:Copyleft T-Shirts (Score:3)
If DeCSS was pseudo-code, would it be protected by the first ammendmant? What if it were written instructions?
If I rename decss.c to decss.bmp (which would probably look like noise), print it, and frame it, is it art? If I print it large enough, a scanner and the right software could compile it directly off the bitmap (just change the lexical analyzer to recognize a series of dots instead of a byte corresponding to an ASCII value).
Basically, I'm saying that source code should obviously be protected free speach. The instructions for making a bomb (including measurements, chemical mixing, and all) have already been established as protected free speech. So obviously, an english step-by-step instructional essay on how to break CSS would be protected free speach. Source code is just a form of shorthand for writing a limited set of instructions that a compiler can then translate into code a computer can understand. The DMCA is saying we cannot shout, "the emperor has no clothes."
*idea*: Write a perl script that translates C code into English that can always be perfectly re-translated back to C code. Maybe run that through a speach synthesizer or read it. Let's see the courts say that isn't speach.
Re:Real Impartial (Score:3)
Do lawyers and judges routinely remove themselves from cases to avoid even the mere appearance of impropriety? Yes. Should this judge have? Yes.
Does he give the appearance in general of being biased against the defendants for ideological reasons? Yes. Does he give the appearance of being personally biased against the defense team? Yes.
Kaplan's behavior will be a liability to the plaintiffs in appeal for plenty of good reasons, even if his former law firm's role in advising Time Warner on issues germane to the case isn't itself the best reason.
Boss of nothin. Big deal.
Son, go get daddy's hard plastic eyes.
Re:Real Impartial (Score:3)
It's appeal time.
Re:Real Impartial (Score:3)
It's pretty easy to get rid of a law once it's been passed. You just bury a rider 500 lines deep in a budget bill that says "The DMCA is hereby repealed", get both houses to sign off on it, and start watching movies on your platform of choice.
IANAL BIRA LOS (I am not a lawyer (but I read a lot of Slashdot)).
Before you get up in arms... (Score:3)
It is NOT his purpose to decide whether that existing law is bad or not, and his own views regarding the law itself should not be relevant to the task at hand. So, protest the law, not the judge.
Re:interesting times (Score:3)
Of course personal responsibility, the basis of a free society, takes a distant back seat to corporate greed these days.
Fascinating! (Score:3)
You also are absolutely incorrect. (Score:3)
No, he decided that source code was worthy of Constitutional protections, and said so, very plainly in the ruling. However, Constitutional protections do not rule out content-neutral regulation of "expressive actions", if the public benefit of regulating the "action" outweighs the restriction which is thereby put on expression. Since the DMCA does appear to fit into this category, it is Constitutional in this sense. He noted that the "fair use" argument was stronger, but decided on balance that CSS did not sufficiently impair fair use to render the DMCA's application in this case to be unconstitutional.
Re:Kaplan invents new clause in DMCA (Score:3)
I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD...
It only takes a little money and the cooperation of one DVD mastering and manufacturing company.
Create 4.7GB of Free Software (including, of course, DeCSS.c). Encrypt it with the CSS algorithms derived from the DeCSS reverse engineering. Prominently display a copyright notice, together with a license that the only way the disc can be used is with DeCSS. Supply DeCSS and necessary other viewing programs on an accompanying floppy. Take it to a friendly DVD manufacturer. Print up a license and contract to go with it. Have all the Linux distros sell it online.
The point is, DeCSS does decryption--but so does any CSS implementation. Obviously, in this case, DeCSS would be doing it with the consent of the copyright holder--the Free Software Foundation and all the other copyright holders on the DVD.
Yes, the MPAA and the DVD-CCA will not like this. So they sue. On what grounds? It could only be on trade secrets--but that is a loser--they would have used that in New York if they thought it would win. They use Judge Kaplan's decision, that distributing DeCSS is illegal? But where in his decision does it say that it is illegal to distribute and decrypt a copyrighted work with the authorization of the copyright holder?
I am really offended by Kaplan's decision. It almost libels the Free Software movement. If it is allowed to stand, then the liberty of all of us using computers and the Internet is in question. Even reporting the code to a virus would be illegal, according to his way of thinking.
Fairly soon, we will think about using the expanded storage power of DVDs to record computer data. It is time we made sure that we will be free of the monopoly on DVDs by Hollywood. They don't want us to produce content--they want to rent us content on pay-per-view.
I'm willing to donate money and help for this project. Anybody else?
Re:Too bad we didn't get a rational judgement (Score:3)
The judge is convinced that the emergence of the decss.exe binary for Windows machines and it's "disease"-like spread (yes, I love where he compares internet file sharing to disease transmission) undermines any verity to the claim that this is a Fair Use issue at least for these defendents.
Personally I think the DMCA is a great reason to never vote for any Democrat or Republican again. I had gone to great trouble to find links to all the Congress members who voted for this, but the Senate link was session-based (it was a unanimous "yea", btw), and the House had a voice vote, which seems to have prevented a voting record from being made.
Re:Before you get up in arms... (Score:4)
The judge was, however, confused by MPAA rhetoric about the distinction between copying and merely accessing. There is no law against accessing what you already own. DeCSS is a tool for accessing, not copying. When used for accessing the information you already own a legitimate copy of, then its use is legal in that no law exists to prohibit it.
The MPAA is relying on misinformation to win this. You can see the misinformation in every statement they make where they claim DeCSS allows copying. As you should know, DeCSS allows access to bypass the encryption. But a DVD player does that, too, with very slightly less quality.
The mere fact that we accept lossy compression means we accept less that perfect reproduction as long as that reproduction does not continue to degrade. I could frame capture a DVD movie from a DVD player, re-digitize it, and it will be somewhat less quality than the original, but the digital copy will not degrade any further. That copy could then be illegally distributed and it would remain at that quality level throughout the entire tree of distribution.
Likewise, the originally encrypted version can be duplicated, and you end up with a perfect copy with the encryption intact. The encryption still means you have to decrypt it, but you now have a mechanism whereby the movie producers are not rewarded for their efforts, and DeCSS is not even involved in this. Copying can be done without DeCSS.
DeCSS has a legitimate purpose (viewing what one already owns by having legally purchased it and rewarded the movie producers), and does not significantly contribute to illegitimate purposes (since it is possible to access acceptable clear copies, as well as make duplicates of the encrypted copy, all without DeCSS). The facts of this case are that the facts have been manipulated by the MPAA.
I am not a supporter of piracy. If the MPAA had a legitimate desire to prevent piracy, they would focus on the piracy that takes place, rather than focusing on a tool that allows them to discriminate against me because I choose to not use crappy software from Redmond Washington. Sadly, the court victory means nothing because it won't stop or even reduce piracy. Mostly likely piracy will go up, and I would not be surprised if it triples or more. And in the mean time lots of people like myself will be boycotting not only DVD movies, but all movies produced by MPAA members. It's time to check out your local art theatre or maybe even a real stage play.
Re:Wow... talk about missing the point (Score:4)
I don't think the defense made that statement in court, but the plaintiffs were able to convince the judge that this was, in fact, the case.
Moreover, if you read the judgement (nobody much here seems to have done this, however), Judge Kaplan thought the strongest aspect of the defendent's case was not the "legitimate player" aspect per se, but the possibility that the situation without the availability of DeCSS would prevent fair use of the copyrighted works encrypted under CSS. Indeed, Kaplan points out that this kind of argument was one of the biggest controversies involved in the passage of the DMCA, and that the act is a compromise of sorts. But over-ruling the DMCA was certainly not his job. Kaplan's job was to decide whether the DMCA would apply in this case (it did), and if the plaintiffs were entitled to any damages if the DMCA had been violated (it was violated, but all he gave them was court costs rather than attorneys fees).
The presumed appeal here won't be on the facts of whether or not the DMCA was the correct statute to use to grant a permanent injunction on the posting of DeCSS , but whether the "compromise" to fair uses of copyrighted work posed by the DMCA is, in fact, unconstitutional. That would be a much more interesting case, but not the case the judge was in any position to decide.
Well, I think so; I am not a lawyer. I'm crossing my fingers that Doc Hawke, Esq., will post something more informative on this.
Too bad we didn't get a rational judgement (Score:4)
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.
While there certainly are those on the DeCCS side who may come off this way, it misses the issue by a mile. DeCCS doesn't "break into. .
For people paying attention to the trial, is this misunderstanding due to a bad job by the defense lawyers, or is the judge just an idiot?
Re:Real Impartial (Score:4)
Did judge Kaplan miss the point? Yeah. Was he biased? No.
-B
Re:Copyleft T-Shirts (Score:4)
I don't find that funny.
I totally disagree with your assessment (Score:4)
The judge indicates that he clearly took into account the intent of 2600 to distribute DeCSS to be used for other than fair use. Also, he cites there posting of links to DeCSS to another example of 2600's intent to get other to not only download DeCSS but to use to rip DVDs for other than fair use.
Intent (ie the belief of the defendant/s) has always been a necessary element of proving a crime has been committed. That is why when you kill someone in an auto accident while obeying the traffic laws, you are not considered to have commited murder or even manslaughter, since you had no intent to kill anyone. (if you were violating other laws then you may be convicted based on extreme negligence, but that is a whole seperate story).
What I fail to understand, is that the judge comes to the conclusion as to the intent of the original author of DeCSS, aparently soley on the basis of MPAA testimony. The author wasn't on trial, but his intent is crucial in finding that the primary purpose of DeCSS was to violate copyright protection, rather than to enable fair-use.
Re:Real Impartial (Score:4)
I'm going to take the time and write my legislators about repealing the provisions of the DMCA which enact the absurd restrictions on reverse engineering encryption systems, just because they protect copyrighted works. The criminality of that activity should require a burden of proof that it was intended for the illegitimate access to the protected work.
Re:Too bad we didn't get a rational judgement (Score:4)
Hey, Ketzer, thanks for the "explanation" but it is even worse than Kaplan's decision. How you got a "2" for "Informative" is beyond belief.
No, because it doesn't have to say that. Just like guns don't have to say "don't shoot people!" on them, because it's already the law.
So guns are now illegal?
You didn't buy a movie, you bought a DVD. Nobody signed over ownership of the information contained on the DVD to you. So you don't have the right to do whatever you want with it.
Well, I say I did buy it and I claim I have those rights. Show me the piece of paper that proves you are correct. You refer to some "license" I never saw nor heard of, even from Kaplan.
In the case of VHS, they license you to view it under certain conditions, and if you view it under different conditions (like in a big movie theater with 1000 "friends" who paid to get in) then you are breaking the licensing agreement.
No, you might be breaking copyright law (it depends on what the copyright owner agrees to, when it comes to redistribution--it is not always illegal--look at the GPL for example). However, in some "license" (but not with DVDs) a copyright owner might try to restrict you from making a backup copy. In that case, you need not comply with the license, because that is unconstitutional.
In the case of DVDs, those conditions are a bit stricter, in the sense that they restrict the method of viewing to a licensed viewer.
Who says? I never made a contract or bought a license from the DVD-CCA.
The legal difference is that for VHS, the conditions are determined by Fair Use laws, which say what conditions you are allowed to copy or view the info.
There are no "Fair Use" laws, there are only copyright laws, and DMCA is part of the same Title 17 now. There is no difference between VHS and DVD. Both have Macrovision, and both try to keep the user from exercising fair use rights of copyright law.
DCMA makes it illegal to break that encryption,...
DMCA (not DCMA) doesn't make it illegal to "break that encryption." If that were true, any playing of a DVD in a player would be illegal, because every player has to decrypt the scrambled files.
which protects information owned by the movie studio.
There is no "property owned by the movie studio." The movie studio has certain statutory rights for a limited time. But the purchaser of a DVD owns the DVD and can use it, view it, decrypt it, resell it, put it under a scanning electron microscope to examine the pits on the disc, play it on her dishwasher, use it to shingle the roof, or whatever use she wants, after she has bought it. There is no license, no different law for DVDs than for other digital or analog content under copyright law.
it's a crime to break it and take their info.
Yeah, this is the "crime" that the MPAA accused 15-year-old Jon Johansen of, "breaking into" his own computer and "taking their info" so he could play the DVDs that he purchased on his own computer (GNU/Linux).
So you want to lock this kid up or give him a medal?
Exact Details on legal/illegal linking: (Score:4)
Obviously a first victory for the money interests. a shame that the dvd script kiddies who had to go trading these things around screwed it up for the rest of us.
Real Impartial (Score:4)
I may be way off course here, but I don't believe the defendants would ever make the argument as stated above. Even a foolish idiot wouldn't make such a spurious claim. The fact this judge has interpreted the argument in this fashion implies a clear biased.
I am not making a comment on the ruling as a whole, just this judge's view of the defendants. It is also interesting to say that the current framework is one that protects and harbors a monopoly.
Re:mirror in case Courtweb gets /.'ed (Score:4)
Try this [mud.nu] instead.
-- Sig (120 chars) --
Your friendly neighborhood mIRC scripter.
interesting times (Score:4)
Re:Computer nerds: meet legal nerds (Score:5)
Whether intentional or not, your entire post comes across as condescending. The belief that somehow this is a "lesson to all the kiddies" is demeaning and manages to portray the idea that all the people involved were naive and ignorant imbeciles.
The defendant, the 2600 website operator, was a 40+ year old journalist. Not a punk kid.
Experts for the defence included 50+ year old Professor Touretzky. Not a punk kid.
The defence lawyers have 20+ years experience and have acted seriously from the start.
But the point you raised which annoys me the most...
You haven't even bothered following the case else you wouldn't even make this stupid claim. The defendants never once argued along this line of reasoning that "information must be free". I don't believe that rot, and clearly the defence and the defendants didn't either.
This case is far more chilling than the lame need to watch hollywood movies. What the judges decisions effectively says is that an encrypted material cannot be decrypted without the author's consent. This has far-reaching implications not for DVDs or even movies. This has the potential to destroy Linux and open source itself. Imagine your next video card has the GPU microcode kept in encrypted flash: you can't even use the card without using the vendors drivers unless you want to circumvent the encryption method. This means the DMCA allows vendors to prevent open source drivers from being traded and improved.
I think you've done a great disservice with your post. Not only did you trivialise the entire defence, implying that they were just a bunch of unruly "punk kids" who were giggling and swearing while acting disrespectfully to the court, you also manage to completely misunderstand what has happened here and why it is so important.
Re:Does this surprise anyone? (Score:5)
1) The first amendment DOES permit the publication of potentially dangerous information or instructions. This has been upheld by the Supreme Court for quite some time (at least since the case in which a magazine published instructions for nuclear weapons construction in the 60s -70s)
No, you can't say "Let's go kill Brian Adams, right now" but you can say "Brian Adams will be the first against the wall when the revolution comes." One is an immediate incitement to an illegal act. The other is not - it's protected speech.
And source code has been found in a different circuit to be protected speech, and once a case involving that idea gets to the Supreme Court it's likely to be upheld there too - why should VERY PRECISE speech be less protected than vague speech? It's not impossible to program a computer in English, if you're clear and write an interpreter.
2) The MPAA members are illegally using their copyrights to acquire and keep a monopoly on DVD players. The traditional remedy, as I have heard, is to invalidate the copyrights being used in this manner until such a time as they are no longer being used for illegal activities.
The Judge (whose firm has consulted for the MPAA on antitrust issues in the past - which is why he probably should not have been involved with this case) quickly decided that the DMCA overrides antitrust law (it plainly doesn't and the Congressional record is clear on that over and over again) and refused to hear arguments along those lines.
3) Fair use is being circumvented by the DMCA, but fair use is a right which for over a hundred years was found by courts high and low to be more fundemental than copyright. While Congress has since explicitly enacted laws protecting fair use, they are constitutionally unable (so sayeth the courts) to get rid of it.
But Kaplan let himself be fooled by the MPAA who claim that fair use still exists, even though you can't actually exercise it.
4) The MPAA never showed any harm, which is something of a prerequisite. The case should have ended at the beginning, really.
2600 has a MUCH stronger case than the MPAA. They just don't come across as well to a biased judge.
"Defendants are anarchists, therefore..." (Score:5)
It is bizarre that a judge would include in his conclusion statements about the beliefs of plaintiffs and defendants. Isn't the whole point of blind justice that decision is made based on actions, not the personal beliefs of those who act?
In First Amendment cases in particular, it is very important to distinguish beliefs from the content in question.
If I post a photo on the internet which is not obscene, for example, the judge cannot throw me in jail because of my beliefs.
And if I make a statement about someone which is not libelous, to pick another example, the judge is not allowed to decide based on which movements I belong to. Freedom of association is another freedom guaranteed by the First Amendment; it is unconstitutional in this country to use one set of laws for people in organizations we like, and another set for those we don't.
Jamie McCarthy
But did he? (Score:5)
No, it isn't. DMCA talks about circumventing the protection without authorization, but so far (I haven't finished reading Kaplan's whole opinion yet) the judge has not explained why the owner of a DVD does not have authorization to watch the movie.
Remember: DMCA strongly implies that whatever authorization there is, comes from the copyright owner of the work, not the inventor of the encryption algorithm. Furthermore, the DVDs are sold without the buyer contractually agreeing to certain conditions (i.e. using an approved player) in exchange for that authorization. Therefore, the question of whether I have authorization or not, is identical whether I play the movie with LiVid or a Sony DVD player.
If I am violating DMCA when I play a DVD with LiVid, then I am violating DMCA when I play a DVD with a Sony DVD player. I am pretty sure this situation was not Congress' intent, therefore I think authorization has been granted, and therefore DeCSS does not break the law.
---
Kaplan invents new clause in DMCA (Score:5)
It looks like Kaplan found a hole in the Plaintiff's case and tried to patch it himself by pretending that some additional legislation has been passed! Maybe he always wanted to be a congressman instead of a judge. Check this out, from from page 32:
I call your attention to the phrase "by purchasing a DVD player or drive containing the keys pursuant to such a license." Where did this come from? It's not in DMCA. Kaplan pulled it out of his ass.
Why is this important? Why did Kaplan make this up? Because: The plaintiffs need for the "authorization" to watch a DVD to not be granted by purchasing the DVD. If authorization is granted by buying the DVD, then DeCSS and LiVid do not violate 1201(a)(2).
Kaplan could conclude that authorization is never granted, but that would mean that watching a DVD is always illegal, regardless of the player. Clearly, that would be contrary to Congress' intent when they wrote DMCA. Coming to a conclusion that is contrary to the intent of the law would be a very bad thing. Sort of like an indirect proof in math, where you assume the opposite of what you want to prove, and show that it leads to a contradiction. Kaplan must dream up some way for authorization to be granted to watch the copyrighted work, without it being implicitly granted when one purchases the copyrighted work.
One way that a consumer could get authorization would be to sign a licensing agreement when they buy a DVD, where the terms are that the consumer gets authorization, in exchange for agreeing to not watch the DVD on unlicensed players. That would work perfectly. Just one problem: it is ridiculous. People don't sign license agreements when they buy DVDs. So that idea is out.
At this point, Kaplan is in a real pickle. He can't say that authorization is granted by an explicit agreement, because DVDs just aren't sold that way. He can't say that authorization is never granted, or the defense wins. He can't say that authorization to watch the DVD is granted when the DVD is bought, or the defense wins. And of course he can't let the defense win, because that would make his old firm look bad since they did consulting work for MPAA. (If only he had recused himself, it would be someone else's problem, and they could just rule for defense. But he didn't recuse himself. Oops.)
The poor man is in a real bind here. What can he do? He has to invent some other way for authorization to be granted, and here's what he came up with: "by purchasing a DVD player or drive containing the keys pursuant to such a license." DMCA pretty strongly implies that authorization comes from the copyright owner. There certainly isn't anything in DMCA that says that authorization comes from the algorithm inventor. Maybe if it had been patented, that would have worked. But CSS isn't patented. Oops.
There's my challenge to Kaplan and the plaintiffs: explain how I get authorization to play all CSS-protected works (even CSS-protected works where the copyright owner is not a member of MPAA and has no agreements with DVD CCA) by buying a player. Show me the part of DMCA where it says that I can get authorization to circumvent the protection of a copyrighted work, from a third party who may not be acting on behalf of the copyright owner. Show me. I bet you can't.
I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD and sue Sony for trafficking in a player that plays it. Let Sony's lawyers explain how they, not me, grant consumers the authorization to circumvent the protection on my work. Let Sony's lawyers explain how they bought that right from DVD CCA. Let them explain how DVD CCA has universal authority over all copyright works that are scrambled by an algorithm that is unpatented, public domain, and available from thousands of sites across The Internet.
---
Let us consult the Constitution.... (Score:5)
This clause is varyingly known as the "copyright clause" or the "patent clause" depending on what kind of a lawyer you are. Either way, this is the exact wording in the Constitution (section 8) that provides for the creation of Intellectual Property.
It says:
The Congress shall have Power...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
It seems that the authors of the consitution had not intended in any way for Intellectual Property to be a financial protection in the way that it is currently interpreted. Seemingly in direct contradiction, the judge says:
Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain.
(emphasis in both cases rather obviously mine)
Something smells fishy here...
Anthony
Absolutely incorrect. (Score:5)
The Supreme Court of the United States disagrees with you, as does the vast majority of Constitutional scholars in this country.
Any and every Article III Judge in the United States (and Kaplan is one) has a Constitutional duty to see that the law of the land is upheld.
The nation's highest law is the Constitution. It is therefore the required duty of all Article III judges to review laws which come before them for Constitutionality.
Judge Kaplan did so in this regard; he came to the conclusion that the DMCA's more odious provisions do not violate the First Amendment. Overruling the DMCA, if it is unconstitutional, is definitely his job...
... he just decided that source code is not worthy of Constitutional protections.
When the Supreme Court handed down a ruling that Andrew Jackson disagreed with, Jackson refused to execute the Court's order and commented: "[The Court] has made its ruling; now let it enforce it."
I'm tempted to write a letter to Judge Kaplan saying the exact same thing.
By the by--many lawyers and judges will disagree with me here, but I strongly encourage people to write letters to Judge Kaplan. Keep them polite, respectful and intelligent--trust me, you do not want to piss off a Federal judge. He will not respond to your letter, no matter how much he wants to; Federal ethics laws forbid him from responding to citizen complaints.
However, the First Amendment guarantees that we have the right to petition the Government for the redress of grievances. The First Amendment nowhere states that we can only petition our President and Representatives.
Re:Copyleft T-Shirts (Score:5)
-tim
Copyleft T-Shirts (Score:5)
Strong Language - Posting DeCSS as Assassination! (Score:5)
I understand the limitations on "calls to action" like incitement to crime or yelling fire in a crowded theater. But if that's the basis for eliminating the First Amendment as protecting DeCSS, there's a contradiction between that and the protection that Loompanics [loompanics.com] books get, which include guidelines on credit fraud, making and using explosives, manufacturing illegal drugs, escaping from jail, etc. Posting DeCSS isn't an incitement to commit crime anymore than posting a description of how to make a submachine gun is - what the user does with the information is the user's responsibility, not the information's.
Wow... talk about missing the point (Score:5)
I followed this case kind of closely, and I don't remember even a shred of the DeCSS defense revolving around the argument that intellectual property should be free to all. The strongest DeCSS argument, in my opinion, was the one that the reverse engineering was specifically legal because it allowed the content to be played on platforms for which there was not a "legitimate" player.
But regardless of that, I think this ruling shows a fairly huge amount of bias on the part of Kaplan, since I don't believe someone who actually read and understood the defensive filings would summarize the defenese's position in this manner.
Or, to be less sinister, maybe it was just a serious lack of understanding on Kaplan's part. One way or another though, the gross misrepresentation of defense's argument in the ruling should be strong grounds for appeal.
-b