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DeCSS Injunction Reversed In CA Case
Posted by
timothy
on Thu Nov 01, 2001 02:59 PM
from the sanity-in-california dept.
from the sanity-in-california dept.
kinesis writes: "For those of you following the California DeCSS case, a court of appeal just ruled in our favor, overturning the injunction imposed by a lower court. The court's opinion is available in DOC and PDF versions.
It's a great read for those who want to really understand the case. The conclusion is nicely summarized with this quote: 'In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.'
" Or you can go straight to the PDF.
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DeCSS Injunction Reversed In CA Case
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Damn (Score:5, Funny)
Pinch me. (Score:3, Funny)
Re:Pinch me. (Score:5, Interesting)
Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA? Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?
Anyone else notice the slashdot.org plug right there in the ruling? That is some awesome free advertising.
By the way, we should note that this case does not appear to have had any impact on the DMCA, but on a CA trade secret law. So we are not out of the woods yet with the federal law.
Re:Pinch me. (Score:4, Informative)
Actually, the court's recognition of source code as expressive speech is a major step in the right direction, if it's upheld by higher courts.
The susequent balance of state (and presumably federal law) against constitutional interests could presumably put an axe in the DMCA's head-- if the code==speech assumption is upheld all the way to the Supreme Court. Don't count on that, of course.
Re:Pinch me. (Score:4, Insightful)
As physical items become (nearly) as close to free(gratis) as information can be now, I fear the effects of existing business being guarenteed a profit despite a change in technical ability and need. In that vain the, FCC owning all the airwaves and dolling them out to a few chosen ones under certain conditions is very much like feudalism. If this end justifies the means (legally destroying time shifting while defending corperate profit) We are setting up the legal tools to legally enforce true feudalism in meatspace.
The legal decisions of the next 10 years can make the next 60 heaven or hell. Near godlike control over the structures that make up all physical matter and physical scarcity needs to distributed among all that do not abuse it. Damn Hollywood for not having vision beyond quarterly reports, and damn us for not fighting them harder.
Respect for creativity and self reliance over profit is esential for invention, self respect and true inovation. Liberty or death.
Re:Pinch me. (Score:4, Interesting)
While I agree with you, I feel the need to at least put in the plug for capitalism.. When you acquire an MBA, econ degree, marketing degree, or any general business degree you are a highly specialized human being. Your focus is to squeeze profit out of a market better than your competitor. If you can't, then you are replaced by the board. If the board can't dictate policy effectively, then the share-holders replace the board. If the share-holders don't choose an appropriate board, then profits linger, P/E ratios drop, and investment firms lower their rating. If the rating drops, the share-price is sure to drop. Thus the investment firms sell stock, and the individual share-owners are dramatically encouraged to replace the board. Furhter, if investment firms that don't react harshly to harsh financial environments won't be invested in by individuals. Assuming Investment firms are mostly collections of lay-people's "retirement" money (401Ks, pensions, individual stocks, etc), then the entire drive to perfect the art of squeezing every last penny is largely propelled by sweet ole mom and pop. Isn't it ironic?
The main advantage to this system is economic efficiency (which has little to do with money). We distribute scarce resources to that which desires it most (or at least is willing to trade the most of another scarce resource). There's very little waste in capitalistic societies. The main sad part is that since you can acquire tradable goods (fiat money) more easily when you already have tradable goods (equity), then the value of a fixed quantity of money to a wealthy person is orders of magnitude less than that of a poor person.. Thus when bidding for a scarce resource, the most needy usually can not compete. But I've never seen a system that avoids this problem without just trading it for other just-as-serious problems.
Given the above, the US constitution is not in the most efficient form (nor could it be without adapting over time). Usually it any modifications to law and or constitutional rights lag behind the currently desired equilibrium (which is usually a compromise which doesn't fully meet anyone's desires, as it should be). But the mechanisms for enforcing these changes are by far not in line with economic principles. Democracy is at least closer than communism to an market-sensative adaptable system. Like the board, we remove the administration when it falls out of favor. But unlike a company, there is no clear direction (as with profit), so it's impossible to gaguge someone's resume' and determine if they stand a chance at better administration.
The general point, however is that we can't blame the MPAA or RIAA for their direction. They are the product of evolution. Anything they'd be replaced with would come to similar decisions. We can only competed with them for legislative efficacy. But like the wealthy and poor competing for a scarse resource, the money favors the large organization in enacting new laws.
The only out I can consider is to define a set of measurements by which a congresman's value can be weighed. How much like "measuring the worth of poety" [dead poet society] this sounds, but this is, indeed in the name of reaching a political equilibrium.
-Michael
Re:Pinch me. (Score:4, Informative)
Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?"
It wasn't dealt with because the issue of whether Johansen did anything wrong was too difficult to decide without more facts, and because the court was able to decide the matter of the preliminary injunction without dealing with Johansen at all. If this case gets to a trial, even after both the trial and appellate courts have pointed out the huge holes in the plaintiff's case, then perhaps the rest of the issues will get hashed out.
I think it's infinitely better that the court ruled on the constitutional issue rather than ducking that issue and resting the decision on Johansen being a minor.
HEADLINES (Score:4, Funny)
In an unprecedented move, Attorney General John Ashcroft locked up all the Appeals Court judges while waving his arms in the air screaming something about terrorists. In a later statement he made the comment "How could anyone imagine anyone but a terrorist thinking free speech was somehow more important than national security?". Reporters who asked provocotive questions were also taken away for correctional training.
Re:I'm sorry... (Score:5, Insightful)
However -- look how long it has taken. Two years, I believe. The problem is that large companies and consortiums of companies can run roughshod over individuals with impunity. Sure, it'll be overturned if someone can scrape together enough money or get enough support to go to a group like the EFF, but it takes *years* to do so. In the meanwhile, their business practices continue unabated.
Will right prevail eventually? Kind of, maybe. But the point is that they shouldn't have the nerve to try to forbid people from playing their own DVDs with any software they choose. You buy the DVD, you should have the right to play it and enjoy it anywhere at any time. You're not infringing on their rights by doing so -- but they're infringing on yours by trying to limit what you can and can't do.
People *should* go ballistic when their rights are trampled on. Thank God this guy was willing to fight.
While you have certain rights on paper as a citizen of the United States, if no one stands up for those rights it's the same as not having them at all. Look at what Ashcroft and his cronies are trying to do... until the Terrorist Act makes its way to the Supreme court, it'll be used to abuse the rights of many people -- I guarantee it. People who are not a threat to the country or our safety, just people who are nuisances to large corporations and/or the present administration. I have no doubt that that law will be overturned eventually -- but probably five to six years from now, after doing amazing damage to people who don't deserve it. Someone will challenge it and prevail, others without the money to go through the process of appeals and whatnot will simply have to take their lumps or worse.
If that's not worth getting upset about, I don't know what is.
This just rocks.. (Score:5, Insightful)
computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"
This confirms my theory that there are more sensible people in the world than I previously expected. I just loved the part where they upheld the belief that "computer source code" being an expressive means for the exchange of information among geeks. I mean, that just rocks..
Re:Nonsense (Score:5, Insightful)
"that's like saying bridges are the preferred method of communication among civil engineers. code is for compilers, text is for people."
Source code *is* text, except in languages like National Instruments' LabView.
Blueprints and engineering drawings, not bridges, are a suitable method of communication between civil engineers. They can be "converted" to bridges by builders reading the blueprints. That does not destroy their value as a medium of communication.
Source code is a way to express an algorithm in a way that it may be *both* understood by humans and converted into executable form.
The court specifically recognized that the corresponding object code would not be a medium of human-human communication, but rather in the nature of a mechanical device.
The quote you made from the decision is in the context of discussions of encryption. Surely, for a complicated encryption algorithm, the clearest, most precise, and most unambiguous expression would be a code-like representation, whether in pseudo-code or a real programming language.
Are you suggesting that bridge designers communicating with bridge builders by text alone would work? Do you think the bridge would at all resemble the true intentions of the designer? Would it even be safe to walk across? I believe we would clearly prefer that communication to take place through accurate drawings.
Likewise, discussions between cryptographers and people implementing encryption systems would almost certainly be most accurate if conducted using code-like constructions. Accurate descriptions of encryption technology are essential to avoid potentially serious errors, such as security flaws. Therefore, communication in source code is far preferable to ordinary text.
Re:Nonsense (Score:4, Interesting)
No.
A natural language like English is, of course, the preferred means of communication for informal discourse. Natural languages, however, are often too ambiguous and verbose to function well when expressing precise algorithms.
Those of you who are programmers, you tell me: which is easier to understand, the DeCSS code in C, or the same code in haiku? (I think you can find the latter off Dr. Felten's homepage at Princeton.) Which is easier to work with?
Taken at its face value and out of context, the court's statement is going to be somewhat ridiculous, yes. However, that does not change the fact that programming languages are as useful for communicating algorithms between people as they are for communicating algorithms from a person to a computer.
Yes, *but* (Score:5, Informative)
If you read the decision, you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright, just that the First Amendment trumps prior restraint in the form of preliminary injunctions in a trade secret case of this kind. The appeals court could still conceivaly come back and approve a final judgement against the distribution of DeCSS, and the court will surely uphold actions against individuals distributing copyrighted DVD materials through benefit of DeCSS.
Which puts matters back into the interesting realm of practical enforcement of copyright on an open Internet.
Re:Yes, *but* (Score:4, Insightful)
Agreed. They explicitly state that there are Constitutional issues with Copyright. However, this is a "Trade Secret" suit, brought under UTSA, and the court held that the First Amendment trumps trade secrets, since there is no constitutional basis for trade secrets (unlike Copyright).
Re:Hip Hip Horay! (Score:5, Informative)
No, you cannot.
This reversed the preliminary injunction only. That means that DeCSS can be distributed in source code form. If you read the PDF carefully (hint, hint) the appeals court says that, indeed, the trial court might decide to assess financial penalties for the improper disclosure, if any is found to exist. The case is still headed to trial--just without the odious preliminary injunction.
The other posters who pointed out how bad a ruling the PI was are right; it was just a matter of time before someone with judicial authority understood the "if it can be put on a T-shirt, it's speech" argument.
There are still a lot of scary, possible outcomes relating to reverse-engineering, jurisdictions which govern license agreements, and other issues. We're NOT out of the woods on this one yet, folks.
text version (Score:4, Informative)
Its just something to get our hopes up (Score:4, Interesting)
Re:Its just something to get our hopes up (Score:4, Interesting)
You also have to pay the people who fronted the money to pay for the production of the album. Hmm... that's often the record companies, isn't it? Yes, they do end up charging more than they really need to, and so do the record stores. HMV will sell a CD for $25CDN that I could pick up at an independent store for $18CDN.
The best method I saw for paying the artists directly was a band I listen to allowing people to pre-order their next CD (which they hadn't even started writing/recording) for double-price ($30 US), with only the promise of having it autographed. A year later, I've got my shiny new CD, plus a free t-shirt, and $5 off other band-related merch. Very nice. Still, not really any less than a record-company-produced album would cost. Hopefully the artists will see more money out of this, though.
before everyone celebrates too much (Score:4, Redundant)
"We express no opinion as to whether permanent injunctive relief may be obtained
after a full trial on the complaint, as that issue is not before us."
This only prevents the preliminary injunction, it does not prevent a full trial....
Re:before everyone celebrates too much (Score:4, Interesting)
Also, it appears to me that the ruling is quite limited in its focus on speech. It only protects source code, and it only protects "speech", not "conduct". So where is the line that divides speech from conduct? Would distributing the source code of a complete DVD player that includes deCSS along with build scripts and instructions on how to build and use it to play DVDs be considered "speech"? Or would it cross the line from speech about the DVD CCA trade secrets into use of the DVD CCA trade secrets?
Does this ruling mean that the developers of Xine [sourceforge.net] can go ahead and distribute a CSS-enabled DVD input plugin in their next source tarball? That's not at all clear to me...
Re:Look out, Taco. (Score:5, Insightful)
Dur-hey.
This is because those of us who actually understand these machines have realized their economic implications, and that they make copyrights obsolete.
Computers are designed to copy things. Indeed, computers as we understand them today would be useless if they lacked the ability to copy data and move it around. What the Feudal Intellectual Property Lords are trying to do is tell you, down to the smallest detail, what you can and can't make copies of, and what you can and can't do with those copies.
Consider the program Cthugha [afn.org], which is an audio visualization program. It takes the digital representation of the music on CD and turns it into a light and color show. The IP Lords assert that, unless you have been granted explicit permission by them to do something with "their" music, you should be held criminally accountable. They have never granted explicit permission for you to run "their" music through a color organ. Hence, copyright violation.
Further, since the output of Cthugha is directly related to the musical input, the output could be construed as a derivative work (since there is no new "creative material", only a purely mechanical translation from audio space to visual space). Absent a license, derivative works are expressly prohibited by copyright law. Hence, using Cthugha is a copyright violation; and Cthugha could be held as a device whose sole purpose is to violate copyrights, and would be banned. (And after all, why should Cthugha's authors [afn.org] profit even reputationally from a color organ that would be useless without "their" music, when the major labels should be able to make money by selling you one?)
This is how adherents to current IP law think. This is not reasonable. This is not forward-thinking. This is not socially redeeming in any way. This is stupid. It is reductio ad absurdum, except that it is being taken seriously. On the contrary, it merits nothing but ridicule.
That's why you're seeing so little regard for, "traditional IP laws and rights." It's because they don't merit respect. The era of ubiquitous and zero-cost manufacturing, as heralded by the computer, makes them irrelevant and obsolete.
Please note extremely carefully: I am not saying artisans and inventors should not be justly compensated for their creative works. But the "traditional" laws we have in place for doing this no longer have any realistic bearing on the real world, since the machines themselves defy the fundamental assumptions made by the law. The whole system needs to be scrapped and re-designed anew.
Schwab
Thank Goodness, I don't have to worry about ELPs (Score:3, Funny)
Now I can rest easy that when good english language processors come about and all human language is source code we will still have a first amendment.
Besides, it was really taking my little brother a long time to decrypt some of my DVDs with the instructions I told him in English.
Duhhhh....
PDF? (Score:3, Funny)
Aren't we supposed to be boycotting Adobe?
Re:PDF? (Score:4, Informative)
Only when a Microsoft Word file isn't the only alternative. Besides, there are non-Adobe .pdf tools
here (PDFZone) [pdfzone.com], here (PDFPlanet) [planetpdf.com]
, and here (SourceForge) [sourceforge.net].
Re:PDF? (Score:4, Funny)
My Favorite citation from the Decision: (Score:5, Interesting)
[C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an espressive means for the exchagne of information and ideas about computer programming, we hold that it it protected by the first amendment. (junger v. Daley (6th Cir. 2000)))
This is too cool. As another posted said earlier, pinch me. I hope andrew bunner goes after the DVDCCA in an Anti-SLAPP [sirius.com] (abuse of process) lawsuit if he comes out of this unscathed.
Chris DiBona
Other interesting citations (Score:4, Interesting)
"The "fair use" exception permits copying and use
of a copyrighted work "for purposes such as criticism, comment, news reporting,
teaching . . . , scholarship, or research" under certain circumstances. (17 U.S.C., 107.)
It "offers a means of balancing the exclusive rights of a copyright holder with the
public's interest in dissemination of information affecting areas of universal concern,
such as art, science and industry. Put more graphically, the doctrine distinguishes
between 'a true scholar and a chiseler who infringes a work for personal profit.' "
(Wainwright Sec. v. Wall Street Transcript Corp. (1977) 558 F.2d 91, 94.)
. . . the statutory prohibition on disclosures of trade secrets is of infinite
duration rather than "for limited Times." While the limited period of copyright protection
authorized by the United States Constitution ensures that copyrighted material will
eventually pass into the public domain, thereby serving the public interest by increasing
its availability to the general public, the UTSA bars disclosure of a trade secret for a
potentially infinite period of time, thereby ensuring that the trade secret will never be
disclosed to the general public."
I would think that you can use this citation to argue that copyrights, while supposed to be limited in scope, are now becoming de facto limitless, and thus are not 'for limited times'.
Re:Other interesting citations (Score:4, Interesting)
Re:My Favorite citation from the Decision: (Score:5, Insightful)
Perl Code (Score:3, Funny)
# 472-byte qrpff, Keith Winstein and Marc Horowitz
# MPEG 2 PS VOB file -> descrambled output on stdout.
# usage: perl -I
# where k1..k5 are the title key bytes in least to most-significant order
s''$/=\2048;while(){G=29;R=142;if((@a=unqT="C*"
b=map{ord qB8,unqb8,qT,_^$a[--D]}@INC;s/...$/1$&/;Q=unqV,qb
^S*8^S>=8
)+=P+(~F&E))for@a[128..$#a]}print+qT,@a}';s/[D-
Why America Doesn't Suck (Score:5, Interesting)
You know, that old constitution thing you have is pretty cool. I wish we had one.
Re:Why America Doesn't Suck (Score:4, Interesting)
Re:Why America Doesn't Suck (Score:5, Insightful)