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DVD Case Follow-Up
Posted by
michael
on Wed Jan 31, 2001 05:46 PM
from the keep-your-eye-on-the-prize dept.
from the keep-your-eye-on-the-prize dept.
sirhan writes "The ACLU made a court brief today concerning the DVD CCA case. The release can be found here." There were actually a number of amicus briefs filed at the same time for this case, and now I think most of them are online. Journalists and publishers, law professors, law professors II, the Association for Computing Machinery, programmers and academics, library and public interest, cryptographers, and Arnold Reinhold. These are all in support of the EFF's appeal in the case, of course. The briefs make good reading because they attempt to convey, in a very direct and concise manner, the arguments of these various groups against the DMCA.
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DVD Case Follow-Up
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DMCA Loophole (IANAL) (Score:3)
If they then turn around and say 'you can't make a DVD player, it can copy _our_ stuff', you say, well, fine. SONY can't make DVD players either - those players can copy _my_ stuff! (A large reason why DVD player manufacturers aren't guilty of breaking the DMCA is that they are 'commercially viable')
Note well that the new ~$3000 PowerMacs from Apple have a DVD-RW, _and_ firewire ports. The $1600 model has DVD-ROM and firewire. And Darwin has the drivers. (Or should anyway.) There's got to be some sort of interesting & useful hardware hacks in there. [Glares at tangled pile of silly analog cables in his entertainment center]
The free speech argument is all well and good, but this seems like a much faster (and clear cut) way of dismantling this hideous law.
An attack on all fronts... (Score:3)
1) Source code == free speech
2) Restrictions on linking are restraint of free press
3) The DCMA circumvention clauses are not a valid use of constitutional power
Wow, in one case, all three of these (very important) pieces of case law are getting argued. This could set a lot of precedents in all the areas Your Rights Online cares about.
Hell, let's file a Slashdot brief. I want to be in on the action.
But seriously, each of these points is outlined by experts and concerned parties in the area, with relevant citations of law, and (best of all) easy to read explanations of *why* these points are relevant.
Can the MPAA lawyers counter this? Well, they are going to try like hell to do so... and they have every reason to expend a *lot* of money on this case now that the stakes are clear. But for now, I'm encouraged by how support is rallying for the good guys.
Re:These briefs hit hard (Score:3)
Imagine you're a musician. You're poor, so you use consumer grade equipment (reasonable now that we have good desktop computers, midi, sound cards and cd burners. Nice as a studio rig is, you can get by)
The *same* mechanisms that 'protect' music from being copied if you don't own the copyright can *also* prevent you from making copies of music for which you *do* own the copyright. And yet breaking those 'protections' is illegal, because you might violate someone else's copyright in order to fully exercise your own.
If someone can defend that, I'd like to hear it.
Joining the ACLU... (Score:3)
But try as I might, I can't find anything on their site about privacy. I've joined the EFF only after making sure they weren't going to sell/release my info. It doesn't look like the ACLU has the same types of policies.
Anyone know if it's possible to join organizations like the ACLU or Americans United for the Seperation of Church and State (www.au.org [au.org]) in such away that privacy is assured? Also, is it generally better to join the national ACLU or a local chapter (both have web sites...)
Believe it or not, I emailed the local ACLU branch and didn't get a decent answer. I'm guess they're pretty busy fighting evil. ;)
W
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I should have added this..it's opt-out (Score:3)
http://www.aclu.org/privacy.html
it says,
"However, the names and postal addresses of ACLU members, including those who join through the ACLU Freedom Network website, may be exchanged or rented to other organizations or publications under the procedures outlined below.
Members who join through the ACLU Freedom Network website are provided with an opportunity to opt out of this exchange."
but I couldn't find the opt-out button on their signup page (https://secure20.client-mail.com/aclulink/forms/
), just a way to manually request that they opt you out via an email address, which sucks.
W
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It's good that the last case was lost.. really (Score:3)
Pan
Re:"Encryption" (Score:3)
So depending on how "effectively" is measured, it could very anywhere from "it's theoretically proven to be impossible to brute-force" to "someone would have to think for a few milliseconds to be able to figure out how to get around it".
eg. If the data is in a format that no current software can read, then that format could conceivably be an effect access control, even if the difference between it and some other standard format is a trivial change.
Again, it's all in how they interpret "effectively". I doubt that any sane judge would accept the latter definition, but it's possible.
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It's illegal to distribute circumvention tools. (Score:3)
Of course you can... but here's the catch: there's nowhere you can get the tools to do so. Indeed, as these tools can possibly be used to circumvent, their distribution is forbidden. So, unless you are not only a musicer, but also a good programmer, capable of writing your own tools, you are effectively banned from circumventing the protection mechanism. See this post [slashdot.org] for more details
Sorry subjects of King George (Score:3)
Didn't work then. Doesn't work now.
Re:Joining the ACLU... (Score:3)
I don't worry about the privacy of my information with them, but if you want to just support them, I'm sure they appreciate anonymous donations!
Which way does the judge lean? (Score:3)
One of my more paranoid friends pointed out to me the Federalist Society [fed-soc.org], on the basis that it is an association of judges with their own agenda, and that it is a conservative agenda. If you check out their website, it is quite the sedate affair.
This is contrasted with the very unsedate anti-federalist sites like this one [no-debts.com], which are all a hoot, and read *every* thing the federal government does as a con, a gype, and a fake..
However there is a point here which is well made, given broader evidence by our experiences of the past few months.
There are many judges that tend to lean one way or another. Judges do NOT live in a vacuum. Commercial interests, via their lawyers and bean counters, are out for the maximum number of beans in the pot.
Aside from the obvious joke on the effects of eating too many beans (combined with lawyers, etc.), I would want to know more of the possible conflicts of interests of the judge(s) involved. You can bet that the corporate interests choose a judge that they thought would be the most sympathetic to their cause. They would be stupid to do anything else
OT: other fights (Score:3)
Just a note about this:
There are lots of doling-outs of federal money that are of a dubious nature. And even more uses of federal money by organizations that somebody could object to. Anybody could probably come up with 10 examples of groups receiving federal funding whose idealogies -- whether "religious" or not (and most all of them are in some sense or another) -- are objectionable in some way. We could start with the Republican and Democratic parties, if you like.
Rather than being worried that the feds are giving religious organizations money, we should be sure that no organization is favored over another trying to do the same thing -- except, perhaps, on bases that we can agree upon, such as effeciency, desired results, etc.
Bottom line: don't make it so religious organizations can never receive public funding for projects the public would approve of. Just hold them to the same standards of accountability you'd hold any other organization to.
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Story has errors in HTML (Score:3)
One <a> tag nexts inside another <a> tag. Causing everthing to be screwed up. Please review html code before submitting.
Not aiming too high. Aiming at the target. (Score:3)
It is good that they are attacking the very constitutionality of the DMCA, as it does very clearly violate our rights as given by the first amendment. If they can successfully prove the DMCA is in violation of the first amendment, and therefore the supremacy clause of the Constitution, then it is an issue that will be forever buried -- no court in the future (no U.S. court, anyways) would be dumb enough to try and overturn that. If it's constitutionality was not tried, then future copyright laws might give the DMCA an additional inroad into law.
That, and the Supreme Court typically only votes on major cases involving constitutional law. This is a good way to make sure it ends up high on the priorities list.
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The "Enemy" is *ALREADY* Fighting the NEXT Battle! (Score:4)
We've "known all along" that the challenged DMCA provisions won't survive Supreme Court scrutiny. At least some people at the MPAA and RIAA are at least as smart as we are. So it's safe to assume that they have already begun a fallback plan in case of defeat. And it doesn't take a lot of observation to figure out a major part of it: Shift the arena of conflict from criminal to civil law. That way if you don't do what they want, they can sue your ass for violating a contract that you agreed to.
Here's how they're doing it:
(1) Make shrink-wrap and click-through EULAs enforcable. Anybody remember UCITA [ftc.gov]? Well how about this: You buy their DVD. By purchasing it you agree to only play it on approved hardware. And you agree not to copy any material from it for any reason. Even after the statutory copyright period expires (goodbye public domain and fair use). Oh yes, and you agree to never loan it or give it to anyone who might do these things. And to be subject to damages if they do so. And let's have no sniveling about rights. You gave up your rights, remember. You agreed.
(2) Get vendors to build in hardware-level limits on what you can do. Hello IBM, Intel, and the NCTIS T.13 Committee! Why, it looks like the proposed CPRM standard [theregister.co.uk]! Gee, this is neat: If you can't buy a digital player with a digital output, or you can't buy a hard drive that will store a watermarked music file, problem is solved. And don't think you'll get around this by finding some vendor whose gear doesn't include the restrictions. Because, even if you do, you agreed not to use it (see para.1 above).
And the diabolical thing about all of this is that, once it's in place, all a content-provider has to do is haul you into civil court for violating the EULA. And if they do, you'd better be totally clean, because item one on their list will be a motion for "discovery," which will mean getting a court order to search your home, your office, and especially your computer and its drives for any incriminating material. Due process? Hey, it's a civil case... contract violation. Criminal rules don't apply. And, oh, what if you win, but go bankrupt defending yourself? Well, that's tough... you might sue for malicious prosecution-- oh, that's right, you agreed that you wouldn't...
It's already happening!
What happens if 2600 lose the appeal? (Score:4)
What do you do when the law fails you?
Ignore it.
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Nicely abstracted (Score:4)
Traditionally, US law has considered the first two levels of direct/indirect action to be unlawful:
- 1. Direct copyright infringement -- you copy CD's and sell them in Hong Kong
That seems pretty kosher. But then DMCA added two more levels of indirection:2. First level of indirect infringement - contributory and vicarious liability -- you sell someone a box whose only conceivable purpose is copying CD's, and you know what the buyer is intending to do with it.
- 3. Creating a device that can be used for circumvention of a technical measures for protecting copyright -- you figure out how to make a key.
But then this specific case tries to allege that one further level of indirection should also be illegal:4. Marketing/selling the circumvention devices -- you promote and sell the key.
- 5. URL linking to circumvention devices -- you tell someone where a key is.
when only #1 and #2 are widely considered constitutional.--
These briefs hit hard (Score:5)
Is this the case that will nix this darn thing? God, I hope so. The DCMA is so clearly overbroad -- and that is obvious to any number of people in a variety of fields (CS, IP law, consumer protection). Now, with this case, it seems these very knowledgable people have an opportunity to make these opinions known and specifically target a court that may be able to rule on the bigger issue (not just DeCSS, but the DCMA).
gee, it's almost like this was planned...
You didn't already know that? (Score:5)
The DMCA essentially allows corporations to create new laws on their own.
I think there are two major points that most desperately need to be pushed in attacking the DMCA:
First, it is vital to make the logical connection between banning the means to do something and outlawing the action itself. As I recall from reading the law (IANAL and I am not looking at the text right now, but I read it fairly carefully a while back), the prohibition against circumventing access controls does explicitly provide an exception for circumvention to enable non-infringing uses, i.e., "fair use" rights specifically override it. However, the prohibition against distributing circumvention devices recognizes no such exception, leaving the average would-be exerciser of "fair-use" rights in the Kafka-esque situation of being allowed to do something but not capable of it.
"They" are trying to get away with making the action effectively, but not technically, illegal. The point that needs to be made is the effect of the following logical progression:
- If an action is possible only through the use of a certain tool, then only people who possess such a tool can do it.
- If only a very few people have the skills to create such a tool, then the only way anybody outside that group can do it is by getting the tool from someone else.
- Hence, if distributing the tool is illegal, then the action itself becomes effectively illegal for all but that small group of people.
The point is that the exception for non-infringing uses needs to be extended to distribution (which I guess would be meaningless, since Eric Corley has no control over what I do with DeCSS after he gives it to me), or, conversely, to show that the exception where it is (presumably put there as a concession to Constitutionality) is "effectively" useless.This is all regarding the question of distributing vs. possessing something like DeCSS. From what I've gathered, nobody is being sued for possessing it, because they know as well as we do that that is not illegal, even if they try to spin it that way in the media. The other point is the observation that, if allowed to stand as is, the law, as you said, essentially allows content providers to write their own laws. As we've already established that the "fair-use" exception is no help for practical purposes, the effect is clearly to make it so that the technical measures that the provider implements (which, worse yet, are not even bound by any pretense of Constitutional limits) dictate what a user can and cannot do -- the fact that he may circumvent the controls under certain circumstances makes no difference unless he is capable of doing so, or unless Kafka is making the rules. By a similar line of reasoning as above, this means that the provider's decrees effectively become law. Since corporations are not part of the elected government, they should not be given legislative powers.
David Gould
Very good stuff (Score:5)
The Intellectual Property Clause ... permits grants of exclusive protection only for those "discoveries" in the "useful arts" that would not have been obvious to one reasonably skilled in the art, Graham, 383 U.S. at 6, and only for those "writings" that constitute original expression, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991). Congress may not extend protection to unoriginal subject matter, nor to ideas, processes, methods of operation, and the like unless the threshold for patentability is met. Feist, 499 U.S. at 349-50; Baker v. Selden, 101 U.S. 99, 103-04 (1879). Nor may it grant protection for proper subject matter in perpetuity. A law that protects informational goods without regard for these limitations cannot claim the Intellectual Property Clause as its authority. The Trade-Mark Cases, 100 U.S. at 93-94 (holding that Intellectual Property Clause could not authorize law protecting trademarks regardless of "novelty, invention, discovery, or any work of the brain" or of "fancy or imagination").
The anti-device provisions do not meet this exacting standard. They operate regardless of whether the device is used to access information that is a constitutionally protectable writing, regardless of whether the work so accessed has passed into the public domain, and regardless of whether the desired use of the work would infringe copyright.
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Re:These briefs hit hard (Score:5)
Under the DMCA, it is illegal to bypass content control systems. That means that if a corporation can come up with a way to remove our rights -- even if those rights are legally protected -- it's illegal for a consumer to do anything about it. For example, we all know that CSS eliminates some of our fair use rights. The DMCA makes it illegal to bypass CSS. Therefore, we have lost our rights by default. SDMI is another example. We have the right to freely copy music for personal use. The RIAA didn't like this, so they created SDMI, and boom! it's illegal to make a copy of my own music.
Big corporations are now in control of the legal system.
Re:What happens if 2600 lose the appeal? (Score:5)
Ghandi didn't become famous because he and his followers were criminals / law breakers. They became famous because they were imprisoned and beaten for breaking unfair laws, and this behavior on the part of the state turned public opinion against the state.
Same with Martin Luther King and other leaders of the US civil rights movement - the scenes of violence on the part of the state against demonstrators turned the tide of public opinion against the state, leading them to action (overturning those laws).
The state should respond to the citizens - if the law is being broken uniformly, either the state needs to:
Educate the public (assuming they have not been informed or do not understand the law),
Enforce the law (assuming the law is being broken because the public believes the state will not enforce it), or
Repeal the law (assuming it is being broken by a majority who understand but disagree with the law).
Civil disobedience wakes up the state and forces the end game. When you say you are simply going to ignore the law, rather than fight it (by lobbying your congressman, demonstrating, etc), realize that you are voting that the law in unfair and should not be enforced - but if they decide to enforce the law in your particular case, you will be fighting alone. Maybe EFF will help, maybe not - it's up to the activist community to decide whether to help you.
Personally, I will ignore the law in private, and fund organizations like EFF. I'm not sure what recourse a non-American has, or if the DMCA applies, but they were able to bring a foriegner to court over DeCSS, and I imagine it will happen again.