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The Courts Government News

DVD CCA Part II - Waiting For The Judge 320

When the DVD Copy Control Association's preliminary restaining order was rejected in court on December 29th, a second hearing was called to establish a preliminary injunction to stop websites from displaying or linking to the DeCSS source code. Today, the attorneys brought their cases to light, once again under the watchful eye of Judge William J. Elfving. No decision has yet been reached. Update: 01/20 12:05 by E : Andrew Bunner, defendant and courtroom observer, sent us his thoughts and opinions on yesterday's hearing; they're appended to the bottom.

I got a chance to speak to Tom McGuire, Vice-President of Marketing and Communications for the EFF, who provided part of the pro bono team of attorneys at court today.

"As I understand it, both sides presented arguments, and it sounds like both sides did a good job, although I'm hoping we did a much better job than they did. As far as I understand it, the Judge is going to review the arguments and written briefs that were submitted and hand over a decision in the next few days."

I also got to speak to Matthew Pavlovich, Defendant #13 in the case.

"I think we put together a solid defense. I don't think we're in the wrong. Most of these people are not under the jurisdiction of the California court. There's 15 year olds in Europe. There are real inconsistencies in the way that the prosecuring attorneys have handled this. We really appreciate the support from the computing community. Most of these people really understand what's going on, and their support has been really helpful. This is step one. There are two more cases, and these are federal cases. The fight's not over."

Today's hearing was a much-anticipated event in the Open Source community, but it was just another drop in the DVD encryption bucket. The MPAA filed two federal lawsuits on January 14th, promising that the legal debate over DVD encryption will go on for a very long time.

UPDATE by Andrew Bunner, defendant and courtroom observer:

On the implications of this case:

It would be a tragic blow to consumers and the constitution if the DVD CCA is allowed to win this case.

Consumers want to be able to watch DVDs on their Linux computers. The DVD CCA wants you to only watch DVDs through one of their pre-approved players.

The first amendment will be seriously eroded if Judge Elfving sets a precedent restricting our freedom to distribute the CSS algorithm. I'm wearing a T-shirt that has printed on it a copy of the decryption source code. If this injunction is granted, it will be illegal for me to wear this T-shirt. It will be illegal for you to photograph me wearing this T-shirt. In fact, it will be illegal for you to link to a photograph of me wearing this T-shirt.

On the trade secret argument:

Last night, I found 245 sites that make the supposed "trade secrets" available for download. At the Temporary Restraining Order hearing, one individual handed out printed copies of the "trade secrets". Another had the same material available on floppy diskettes that he was giving away. The algorithm and how to obtain the master keys has been widely discussed on mailing lists, in class rooms and in court.

It's not much of a secret anymore.

A list of mirror sites can be found at http://www.humpin.org/decss/. Be careful, though. By including that link in your story, are you making yourself a defendant?

(*) As we understand it, the phrase "trade secrets" in the plaintiff's filings refers to the master keys and the CSS algorithm.

On the misappropriation of trade secrets:

Yesterday, the counsel for the defense claimed that I should know that the Linux DVD player was based on stolen trade secrets. I don't believe anything was stolen. The DVD CCA underestimates the skill of the software development community. I know that these programmers are capable of reverse engineering and decrypting DVDs without resorting to theft.

On how I think the case will go:

There's only one way Judge Elfving can rule without re-interpreting the First Amemendment.

On copyrights:

Movies are already protected under copyright law. No one disputes that it's illegal to duplicate and redistribute movies... in any format. That's not what we're trying to do. By making the decrypting algorithm available we want to let consumers play their legitimately purchased movies on their Linux computers.

On the hopelessness of the MPAA's situation:

It's impossible to restrict consumers from making private copies of their legitimately purchased movies through any technical means. If you can play a movie, you can capture it and copy it. And as long as that copy is for personal use only, this is perfectly legal. We think the MPAA will eventually come around and recognize this truth.

On piracy:

It would take about 16 days to download a full-length DVD over a modem. I'd rather just buy the disk.

(*) The math... 4.7 GB * 1024 MB/GB * 1024 KB/MB / 3.5 KB/sec = 1,408,087 seconds to download a 4.7 GB movie over a 28.8 phone line that gets 3.5KB/sec. That works out to over 16 days of continuos downloading.

How I felt after the hearing:

We had a fantastic showing of support from the Linux community, cryptography experts and free speech advocates.

Our defense team did an excellent job outlining the absurdity of the plaintiff's position.

This discussion has been archived. No new comments can be posted.

DVD CCA Part II - Waiting For The Judge

Comments Filter:
  • by Anomalous Canard ( 137695 ) on Tuesday January 18, 2000 @05:54PM (#1359945)
    DeCSS, the Windows program that is the subject of last week's MPAA suits, hasserved its purpose and should be allowed to die gracefully. It provided a working example of how to authenticate a drive and extract the necessary titlekey to decrypt the .VOB files and how to apply that key against the data in thefiles. But LiViD, the Linux DVD project, has moved on. The lessons learned from that source code have been incorporated in css-auth in the LiViD suite of programs. It is css-auth and its companion programs that need the protectionnow. Let DeCSS go. Mirror LiViD.
    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I still cannot understand why on earth any US court would even hear a case like this.

    Although, I am very happy to see the community going wild spreading DeCSS around. Check the announcement and DeCSS code in numerous posts under this thread [slashdot.org]. (no, this is not a troll, this is for real), one of the posts details a DeCSS distribution contest with lots of brilliant methods described. Source sprinkled throughout the thread too!

  • by Booker ( 6173 ) on Tuesday January 18, 2000 @06:05PM (#1359955) Homepage
    The case is NOT about DeCSS - it's about decrypting the DVDs. DeCSS is just an example... if they win, you can bet they'll go after css-auth and everything similar...

    I don't think anyone is really arguing that DeCSS, specifically, needs to be enshrined...
    ----
  • I think it's the principle that counts - if people let some corporate lobby-group intimidate them and shut down their web-sites (and threaten to sue for just linking to a site with DeCSS information) you let corporations know that this is a tactic that works, next time you have to stand up to them it will be that little bit harder. It creates a dangerous precedent. If we're goint to have to stand up to them about this why not do it now?
  • by Anonymous Coward on Tuesday January 18, 2000 @06:12PM (#1359961)
    ... several websites were threatened/taken down for linking to this code, correct?

    Well, in that case, why wasn't www.download.com shut down? I don't know if its still there, but a week after I heard about the code being pulled everywhere a friend told me and I verified for myself that download.com still listed this as a download, infact they listed it as "#1 Illegal Download of the Day"

    Why do small websites get smacked and such a HUGE distributor of software not even get mentioned? Or did I miss it somewhere? Help me out, please.

    E.
  • Is there someone who was there who could give an outline of the MPAA argument? I'm curious.

    [TMB]
  • This case was most certainly about DeCSS. That's what nearly all of the defendants posted. One defandant that I know about, Michael Pavlich, hosts LiViD. All of the suits filed last week by the MPAA were over DeCSS.
    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I'd like to see BOTH side's arguments.

    We all have seen the comments like "what about VCR's?" I know someone had to bring this argument up in the trial. What I would like to see is the prosecution's responses to arguments like that.
  • 1. We're rich, we can afford lots of lawyers and we want to be richer.

    2. Our licensing of DVD player licenses is very profitable.

    3. Legal reverse-engineering defeats said licensing scheme.

    4. /* FIXME: finish up the loose ends of the logic */

    5. Said reverse-engineering should be stopped.

    6. /* FIXME: this one too */

    7. Anyone offering the results (direct or indirect) of said reverse-engineering, and anyone linking to a site that does, should be stopped.
  • The MPAA suits filed last week (not the case heard today which was filed by the DVD CCA) is against residents of the US and is based on the Milennium Digital Copyright Act. One section of that is against devices which defeat encryption of digital copyrighted works. The case heard today was based on a trade secrets claim. Specifically that the cose contained misappropriated trade secrets since the DeCSS code was purportedly reverse engineered from the Xing player. That case is exceedingly weak and I don't expect todays hearing to go any better for the DVD CCA than the hearing in December did.
    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I'm not saying that people shouldn't defend themselves with all of the legal resources available to them. I'm just suggesting that mirroring LiViD rather than DeCSS is a better use of the mirror space and a more defensible legal position.
    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • While the DeCSS breaking is an issue all its own, the lawsuit raised an interesting issue. It postulated the idea that a website has committed a crime if it links to a illegal website. By this logic could a site that links to the site that has thus been declared illegal be illegal as well?

    If this is a valid precedent could any site that has illegal mp3s, child porn, or illegally released information contaminate entire sections of the web. This is insane. Thank god the injunction was thrown out.

    However, it does raise an interesting question: If you create a link to a site are you responsible for what is on the other side of the link? Is it an implicit vote of confidence? Does the author have any responsibility what so ever? The creators of the Google search engine thought so, they said so in the SciAm article they wrote about it. It is the basis of their search method.

    Nate Custer


  • They will have a hard time claiming that a DVD player is only useful for making illegal copies :)

    That's an interesting point, and I hadn't really thought of it... it would be a hard argument to say that since the source is available, it could be made into a piracy tool... :)

    But is their main argument that piracy is now possible, or that a trade secret was stolen? If it's the trade secret angle, they'd go after an integrated player, as well.
    ----
  • by xDroid ( 115379 ) on Tuesday January 18, 2000 @06:30PM (#1360002) Homepage
    Just because DeCSS is a windows program does not make the fight any less valid. This case is not about DVD encryption security, but about regulation of freedom.

    Hear me out...

    A key to this whole case (from the DVD side) is that you had to have reverse-engineered their software in order to break the encryption. This is not true. (though it would be easier). The method of attacking a problem is to use the tools available to the problem solver. These tools are what's at stake. This hack would have been more difficult without brute force tools and languages like perl.

    The lessons are already incorporated in a number of projects, but that is mute if you take away the ability to use tools or scripts!

    If I take this argument to it's conclusion (if the DVD industry has it's way) I would be banned from using any other method to view or playback their DVD discs. I don't care if their software is the best, I want the freedom to try and fail and try again.
    Let DeCSS die but don't take my tools!

    -- Andy

  • by gigabitme ( 132358 ) on Tuesday January 18, 2000 @06:34PM (#1360007)
    I'll bet we'd be able to offer even more and better help to the EFF if we had a better grasp of the overall strategy they're using.

    If you haven't already seen their press release, check it out here [eff.org]. BTW - there are a two links on that page to good info about their effort, including case documents to date.

    And why not support them by joining [eff.org]?

    DISCLAIMER: The preceding was not a paid advertisement for the EFF! *8-)

  • What matters is what it does. If the program decrypts DVDs, the DVDCCA and/or MPAA will go after it if they didn't license it. And if the defense of DeCSS fails, then LiViD and any other program hoping to play a DVD without paying the DVDCCA extortion^H^H^H^Hlicensing fee will go down with the DeCSS ship, because there will be a precedent set. We MUST successfully defend DeCSS regardless of its actual usefulness as an app or utility, because if we don't, we will have lost any future similar cases even before they go to trial.

  • by buckrogers ( 136562 ) on Tuesday January 18, 2000 @06:35PM (#1360010) Homepage
    We all know that the DVD CCA can't really think that they can make people stop distributing DeCSS. This is all just a big smoke screen for what they are really trying to do.

    Could the DVD CCA be attacking a bunch of young people because they thought that those people were too poor to defend themselves from a crack team of lawyers?

    The DVD CCA thought that they could walk right over those naive programmers and get the judge to hand them a court order with which they would use to bludgeon the rest of us back into line.

    It makes me proud to see so many people pulling together to support these fellow programmers.

    The only thing that has me worried is the fact that the same people that own the DVD CCA also own the press in the US. I have yet to see even a single news article or report in favor of the defendants in this case.

    To listen to the main stream media the defendants are all pirates who want to rob everyone blind and sell inferior products.

    I hope that the judge isn't as gullable as the DVD CCA thinks that he is.

    Here are the facts that I believe to be true. I am wrong about most of them to hear the DVD CCA talk.

    Fact: You don't need to decode the DVD's in order to copy them.

    Fact: You do need to decode them in order to watch them or to make an archival copy of them.

    Fact: It is perfectly legal for a person in the US to make an archival copy of any digital media that they own as long as they don't distribute them and as long as they only make a _reasonable_ number of archival copies. Reasonable being whether or not the judge thinks you were trying to pirate the software!

    Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's. Why do you think all the software vendors stopped copy protecting their software?

    Fact: Big business (and big government) will always harass the little guy in order to get him to fall into line. As long as we can show solidarity toward each other we are safe.

  • by delmoi ( 26744 ) on Tuesday January 18, 2000 @06:37PM (#1360013) Homepage
    I can understand why these people are afraid. Despite what you've said in other posts, DeCSS does make easier by far for you're average warez puppy to copy movies for use on the computer. Just lower the bit rate down to VCD quality, and send it off via IRC. While it would be possible to sample the data with a Video capture card, using one that doesn't do real-time MPEG (MJPEG looks like crap at any reasonable compression rate) is pretty impractical for most.

    That said, I think what they are doing is wrong, in just about every sense of the word. It was there fault they didn't use decent encryption on the keys, (using deeper encryption would have made it much more difficult to brute-force the other keys after Xing's was discovered), But instead of excepting defeat, they try to pass there problem on to us, the computer using public. The sad thing is, it would not be unprecedented

    In a Slashdot interview with L0pht a while back, they mentioned the Cell phone industry. When they created their standards, they didn't even bother to use any encryption whatsoever. Whether this was simple laziness, attempted cost savings, or malicious government intervention, we'll never know. When the cell phone system was cracked though, rather then building a better system, they lobbied congress to ban radio scanners. And not only were radio scanners banned but the combination of a computer, ROM burner and cell phone.

    A friend of mine uses a hacked smart card to get free DSS dish cannels. The card is illegal. Its ridicules. Rather then building a sound system, the government caves in and banns any technology that can be used to circumvent the financial flows of the big campaign contributors. Public be damned.

    In a way, there are not many differences between software like DeCSS and the other wrongly banned technology. But there is one. While the other things are devices, tools, DeCSS is an idea. Sure, you can use it as a tool, in the computer sense of the word. Run file though, decrypt, enjoy. But in my mind anything that can be fully expressed in written form on a T-shirt belongs in the domain of ideas. And that, there, is the problem. The movie industry, acting in their blind desire for money, seeks to ban an idea. And not only one idea, but winning this case will open the floodgates for corporate censorship.

    While the idea of corporate censorship frightens me, it doesn't so much as the fact that they are doing this, that they are trying this. Surely they've figured out what this could mean for Americans, or for the world. In an era of increasing corporatism, its becoming increasingly clear that there's lack of conscious in there quest for ever higher profit margins is not only shocking, but dangerous. The corporations that control our government have no regard, whatsoever, for the health of our freedoms. (maybe I'm being naive here...)

    DeCSS may be a small issue, (at least, for those of us without both a DVD drive and Linux :P). But is another piece. A corporation censors a small piece of information, of knowledge. But the fact that these mega corps would break down our civil rights to cover up there own mistakes is frightening.

    Not to mention the shockingly low signal to noise ratio in this thread... When I got here there were 27 posts, and only two with any content...

    "Subtle Mind control? why do html buttons say submit?",
  • What do you mean? That "endless rhyming" thread was great! (Okay, so maybe I'm biased, since I contributed a few times, but I still think it's funny.) I think it's great to see everyone coming together for a few minutes of mass silliness. If we take ourselves too seriously, we'll never have any fun! But, if you must, go ahead and browse at 1. I think you'll be poorer for it. (Actually, if I had moderator points right now, I'd mark as much of that thread up as I could!) As for me, I'm browsing at -1, so no humorless moderator can deprive me of those great (and even the rotten) trolls. Plus, at -1, I'm unaffected by the bad moderation that I've heard people complain about.

    I was going to post this anonymously, but then I thought, what the heck, this is what I really believe, so I should put my name to it, even if I lose karma over it. (And I probably will, since I'm defending trolls. Oh, well.)

  • Hear! Hear!

    My sentiments exactly. After a very rough day, this thread has managed to cheer me up. Who knew that a story about lawyer stuff held so much promise?

    Proudly signing my name,
  • Even though the methods taken to learn how to decrypt the DVD's were less than honest, the reasoning behind it was quite evident. Even with HD's being as cheap as they are, it's just not sensible to copy DVD's right now. Down the road when removable storage is much larger and cheaper it could be a problem, but then haven't you heard of 90 minute cassettes and EP/SLP recording on VCR's?

    Honestly, my largest complaint about DVD's was simply WHO was out there to pay the licensing fees for a player on an operating system known for contributed code? Someone MIGHT have done it and put together a shoddy player, but then if the quality was bad, what would be the point of playing the DVD in the first place. I'd just go out and snag a VHS tape and forget about it.

    Now that the decryption has been discovered to be pretty pathetic to begin with, the companies just need to roll with it and not worry. Like someone wouldn't figure out how to copy a DVD for 'backup/archival purposes' anyhow.

    The point that needs to be made was that a format that was handed to the general public, due to it's nature, would have been restricted to WindowsX and MacOS, with no possiblity to port to Linux without being charged.

    If they had offered binary libraries for *nix users, BeOS, Amiga, etc. it wouldn't have been so bad. I just don't want to have software out there that is platform specific, which is why I love the OSS movement so much.

    Keep the faith. I'm pulling for you guys!
  • The only thing that has me worried is the fact that the same people that own the DVD CCA also own the press in the US. I have yet to see even a single news article or report in favor of the defendants in this case.

    This was one of the most imporntant points I think I've seen. For that one single line, It should be given +5. This is a bad situation were getting into here... I wish more people would wake up to it.

    "Subtle Mind control? why do html buttons say submit?",
  • I'd just like to summarize the arguments that have been posted here in the past, in the hope that we don't have to hash them out all over again. Towards the goal of more rational arguments, let's be completely clear about the issues here. (And if I'm off base, please let me know)

    - DeCSS does in fact make piracy of DVDs easier by making it easier to re-encode the material as .vcd's or otherwise. It doesn't, however, make something possible that was once impossible. Programs that extract the materials by listening in on video and audio hardware while a sanctioned player is in use have been around for some time now (Two years, I think someone said once.) Let's not get all up in arms about "You can't use it for piracy," because you can. The main use, however, is for playing material in a legal manner.

    - This being said, it can be safely assumed that the DVD consortium is approaching this under false pretenses, and what they really want to do is maintain the profits they get from licensing players.

    - This is evidenced by the fact that bit for bit copies can already be made of DVDs, thus circumventing the entire copy-protection scheme altogether. This, however, requires very expensive hardware, and would be done mainly by those in the realm of large-scale pirates, which are the ones that really do do harm and profit from someone else's work.

    - The DeCSS code was not written with illegally obtained information. (i.e. employee of Zoran takes secret information home with him and writes the program, violating his NDA.)

    - Reverse engineering for compatibility sake is legal in the USA. This is how Compaq et al created the first PC clones back in the 80's.

    THEREFORE, both sides make valid points, and both have fallacies, but our side still holds the winning hand.

    bp

  • "Me Too"

    This thread made my day!

    More power to (the funny) trolls.

    Browsin' at -1.
  • Ive just checked Cnet took it of thier servers with a disclamer...may be returned at a later date.
  • by Anonymous Coward
    > That's an interesting point, and I hadn't really thought of it... it would be a hard argument to
    > say that since the source is available, it could be made into a piracy tool... :)

    That won't matter. The DVD player can even have a "Copy" button in it, but since it's purpose will be mainly to view DVDs, they won't be able to argue that it is purely "a tool of circumvention".

    > If it's the trade secret angle, they'd go after an integrated player, as well.


    The trade secret case is probably going to fail. That's the case that this Slashdot story is talking about.

    There are other cases, filed by the movie studios themselves, which are not trade secret cases. Those are specifically targeting DeCSS because they claim it can only be used for making illegal copies.
  • by Anonymous Coward
    > One section of that is against devices which defeat encryption of digital copyrighted works.

    The Digital Millenium Copyright Act sucks and is probably unconstitutional, but even it doesn't go that far.

    It only outlaws devices whose entire purpose is to defeat technological "protections" on copyrighted material. It specifically says that devices which have other purposes are legal.

    (For instance, a VCR can make copies of a tape without the permission of the copyright owner; it can also make copies of a tape that you made in your camcorder and that you own the copyright to)


    So I don't think the Linux DVD people are going to have any problems, since they are writing a DVD player, not a DVD copier :)
  • It was there fault they didn't use decent encryption on the keys, (using deeper encryption would have made it much more difficult to brute-force the other keys after Xing's was discovered),

    I don't think a larger key size would have made much of a difference. They were screwed as soon as they permitted software implementations of DVD players. It was only a matter of time before someone reverse engineered the software. A VLSI chip can also be reverse engineered, but it is much more difficult.

  • I can understand why these people are afraid. Despite what you've said in other posts, DeCSS does make easier by far for you're average warez puppy to copy movies for use on the computer. Just lower the bit rate down to VCD quality, and send it off via IRC. While it would be possible to sample the data with a Video capture card, using one that doesn't do real-time MPEG (MJPEG looks like crap at any reasonable compression rate) is pretty impractical for most. That said, I think what they are doing is wrong, in just about every sense of the word. It was there fault they didn't use decent encryption on the keys, (using deeper encryption would have made it much more difficult to brute-force the other keys after Xing's was discovered), But instead of excepting defeat, they try to pass there problem on to us, the computer using public. The sad thing is, it would not be unprecedented In a Slashdot interview with L0pht a while back, they mentioned the Cell phone industry. When they created their standards, they didn't even bother to use any encryption whatsoever. Whether this was simple laziness, attempted cost savings, or malicious government intervention, we'll never know. When the cell phone system was cracked though, rather then building a better system, they lobbied congress to ban radio scanners. And not only were radio scanners banned but the combination of a computer, ROM burner and cell phone. A friend of mine uses a hacked smart card to get free DSS dish cannels. The card is illegal. Its ridicules. Rather then building a sound system, the government caves in and banns any technology that can be used to circumvent the financial flows of the big campaign contributors. Public be damned. In a way, there are not many differences between software like DeCSS and the other wrongly banned technology. But there is one. While the other things are devices, tools, DeCSS is an idea. Sure, you can use it as a tool, in the computer sense of the word. Run file though, decrypt, enjoy. But in my mind anything that can be fully expressed in written form on a T-shirt belongs in the domain of ideas. And that, there, is the problem. The movie industry, acting in their blind desire for money, seeks to ban an idea. And not only one idea, but winning this case will open the floodgates for corporate censorship. While the idea of corporate censorship frightens me, it doesn't so much as the fact that they are doing this, that they are trying this. Surely they've figured out what this could mean for Americans, or for the world. In an era of increasing corporatism, its becoming increasingly clear that there's lack of conscious in there quest for ever higher profit margins is not only shocking, but dangerous. The corporations that control our government have no regard, whatsoever, for the health of our freedoms. (maybe I'm being naive here...) DeCSS may be a small issue, (at least, for those of us without both a DVD drive and Linux :P). But is another piece. A corporation censors a small piece of information, of knowledge. But the fact that these mega corps would break down our civil rights to cover up there own mistakes is frightening.
  • You are an AC right now.
  • by Anonymous Coward
    here [wired.com]
  • I'm not a karma whore, just look at my posting history. How many of those posts have been marked up? not to many. I don't even have more then 50 karma. The address is just a Spam hole anyway, and it won't be to hard simply block the sender addresses, less time then it'll take you to find those mailing lists.

    I thought what I had to say was important, and no one else had said it, as far As I could see.

    But ultimately your right. I mean, got forbid slashdot should become a place where people discuss things rationally. Could you imagine if everyone spent the amount of time I did writing all there posts? Why, slashdot would become unreadable!! With all those big words and such. Its much more enjoyable now, with 50 post deep threads of one word rhyming and Hot Grits and stuff.



    "Subtle Mind control? why do html buttons say submit?",
  • IANAL but you're treading thin legally here. LiViD took the source from DeCSS and incorporated it into another software package. Just because it is *more* than just a decoder doesn't give it any better legal standing under the Digital Millenium Copyright Act. The piece of knowledge that LiViD needs to work is a trade secret of the DVD consortium. Also, you forgot that many of the defendants were only "linking" to the DeCSS software site. The DVD lawsuit threatens how Web sites are linked.
  • Just for fun, I put together a DVD case straw poll on http://www.LinuxNinja.com/ [linuxninja.com]. Feel free to cast your vote for who you think (or hope) will prevail. ;-)

  • I may be wrong about this (not a cryptographic expert...), but 40 bit encryption keys can be brute-forced in seconds on an average PC, can't they? I'm sure they wouldn't have had any trouble setting up a distributed processing thing otherwise, anyways (I'd join :).
  • What's your first sentence supposed to mean? Any way I read this, it comes out supporting ACs. Oh well. Moving on.

    These would be nice ideas if they weren't so open to abuse.

    If your average lamer AC doesn't want to be moderated down, he'll just do something like:

    yeah, well you suck!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    to make 100 bytes. And a corrupt moderator could spam AC posts until the ratio went above 70%, so that he and everyone else would get more moderation points (and he'd expect everyone to thank him for it.)
    --
  • Not all of them. And I'm not simply saying what I think everyone agrees with to get karma. Although I think a lot of people would agree with my toplevel thread (do you?).

    "Subtle Mind control? why do html buttons say submit?",
  • There are a lot of issues that are at least in some respect resting on the outcome of this case but the most powerful is the First Ammendment issue.

    What's the difference between the speech you have a right to and the code you don't? One might argue that code is more of a "tool" but isn't speech just as much of a tool? Every day you are bombarded with multi-billion dollar ad campaigns. What are these companies spending their money on? Power, of course. The power to influence what kind of cereal you buy.

    From here it's not hard to make the jump. The entire course of history can be changed by the judicious application of words. Revolutionaries inspired or disgraced, treaties signed or rejected. Jelly purchased or left on the shelf. Beyond scale, what's the real difference?

    Words and code are both art forms. They are both powerful. They should both be free. Come get some, bitch.

    http://www.humpin.org/decss/
  • - This being said, it can be safely assumed that the DVD consortium is approaching this under false pretenses, and what they really want to do is maintain the profits they get from licensing players.

    They may also be worried about losing control over the region coding scheme enforced by licensed DVD players. That is one of the most objectionable "features" from the user's point of view.

  • I don't think a larger key size would have made much of a difference. They were screwed as soon as they permitted software implementations of DVD players. It was only a matter of time before someone reverse engineered the software. A VLSI chip can also be reverse engineered, but it is much more difficult.

    I believe the implementation of CSS enables DVD producers to simply drop a key if one is discovered. So while you would be able to decrypt all the current titles, new ones would be worthless with both your program and the hardware that uses that key. If the key for a legit software player was leaked or discovered it wouldn't be such a problem, just put out a patch. On the other hand, if you've got a hardware player that's been compromised, you'd just be out of luck.

    Of course, the DeCSS people got all they keys, and we can't very well kill all all of the players out there...

    "Subtle Mind control? why do html buttons say submit?",
  • I'm glad you had a good laugh. However, I found it irritating to have to constantly scroll sideways to read the comments, so I immediately ran for comments at 1 or higher.

    Also, I'm very glad that you didn't have moderator points at the time (and I do hope you never get any). While you got a good laugh, moderating some of the thread up would force what you find funny on the people searching for serious discussion. Also, it makes the page look hideous in 'nested' mode.

    -V

  • The only thing that has me worried is the fact that the same people that own the DVD CCA also own the press in the US. I have yet to see even a single news article or report in favor of the defendants in this case.


    This is true. I tried to mail a news service regarding factual inaccuracies in one of their articles about this case (i.e. "DeCSS is a copying program"), and the response I got from the author was, in so many figurative words, "fuck off and die pirate scum."

    Now, for the record, I don't even own a DVD player or movies. And my message was polite, concise, and I tried to stress that there were inaccuracies in the story that should be corrected (not that the story was crap). In reply I get a nasty letter along with "my story is 100% factual, there are no inaccuracies in it," which is plainly not true. This was disheartening, to say the least.

    This is a crisis situation, folks...even if the defendants are in the right, it won't matter if the MPAA and company still control the mindshare of the press...

  • Or did you "violate" JonKatz 'til he rose from the dead?
  • It hit me so hard that it forced out some scat.
  • If people said "What about VCR's?" I'd just say, in this case, "Well, you can't copy VCR tapes either, and the only reason that VCRs are legal is for "time-shifting" programs. You can't show em publicly and you can't give out copies."

    Wrong.

    1. It's legal to produce and keep one copy of any copyrighted product, one legally possesses. Only distribution of such copies is illegal.
    2. Even if VCRs were useful mostly for illegal activity, it would not be sufficient to ban them.
  • DeCSS does in fact make piracy of DVDs easier by making it easier to re-encode the material as .vcd's or otherwise. It doesn't, however, make something possible
    that was once impossible. Programs that extract the materials by listening in on video and audio hardware while a sanctioned player is in use have been around for
    some time now (Two years, I think someone said once.) Let's not get all up in arms about "You can't use it for piracy," because you can.


    I think it's safe to say that *ANY* open source DVD player would suffer from this problem. Someone could tinker with it to just get the decoded video stream and nothing else. The "piracy" argument was legal maneuvering by the consortium to impress the judge.

    There has been a shift in recent years in the legislation of security. Instead of ensuring that companies are using good security algorithms, we've made the cracking of proprietary security schemes illegal, no matter how bad the security may be.

    The DeCSS code was not written with illegally obtained information. (i.e. employee of Zoran takes secret information home with him and writes the program,
    violating his NDA.)


    According to the Digital Millenium Copyright Act, it is the product of an attempt to circumvent the copy-protection mechanism, and therefore illegal. Even though the hack was in Europe, the law still applies to people in the US who distribute it.

    Reverse engineering for compatibility sake is legal in the USA. This is how Compaq et al created the first PC clones back in the 80's

    Aha. But no longer, thanks to (you guessed it!) the DMCA.

  • It wouldn't be your fault, if the PHBs forced poor decisions down your throat

    "Subtle Mind control? why do html buttons say submit?",
  • ... understand how big DeCSS is ?

    I won't get into the discussion of what is legal and isn't ( the Judge should tell us all in a few hours ) here.

    Rather I'm hitting on the "why dose the DVD-CCA want to sue ?" question.

    1st the danger ( to them ) posed by DeCSS and it's children ( like LiViD ). Once this software is fully functional and optimized it will be a full free player for every operating system on the market. That means no more player licensing for computer users.

    However that's just the beginning. As the owner of any portable MP3 player can tell you it's just a small leap of faith from working source code to a special purpose device that's essentially a single purpose PC. In other words there will likely be players on the market based on this code. Those players could and in all likelihood will be at the very low end of the price scale because they don't pay the license and most of the work involves piecing together well defined components.

    Those players however could offer more features than the official ones because it's still a PC under the hood.

    Of course those who already pay for CSS could just stop paying and switch to the free code. ( This isn't a desktop OS with lots of tie-ins after all ). In this scenario the licensing body has no source of income left.

    So while I am rooting for the EFF since they are fighting for *my* rights, I have some sympathy for the DVD-CCA since they are fighting for survival. Too bad we won't morn if the organization falls in this economy. All the staff should be employable.

  • by Anonymous Coward
    You should certainly forward your conversation to this person's editor.
  • 3. Legal reverse-engineering defeats said licensing scheme

    I believe their point is that it was not legal reverse-engineering. Xing's dvd player was reverse-engineered, which was against Xing's EULA, which makes any information obtained therein illegal to use. Also, IIRC, Xing's dvd player did not encrypt Xing's key, which violated the contract between Xing and the MPAA.
  • I still cannot understand why on earth any US court would even hear a case like this.

    My understanding of the law is that civil lawsuits are easy to file, just a matter of submitting the right paperwork. There are penalties for frivolous lawsuits, but they seem to rarely be applied. This can be financially devastating if you have pissed off someone with a lawyer and lots of money who wants revenge. There is even a new acronym, SLAPP, strategic lawsuits against public participation, for lawsuits designed to punish people who exercise their first amendment rights.

  • by incubus ( 9714 ) on Tuesday January 18, 2000 @08:12PM (#1360152)
    Your facts are false.
    You cannot copy a DVD without css-auth.
    You can copy the DVD bit by bit with your DVD-ROM drive on your PC, but you will not be able to play the copy without having the DVD disc in the DVD-ROM drive.
    You appear to have bought into the unfortunate falsehoods spread by people who haven't looked up how DVD technology works. Rick Moen's letter posted on opendvd.org is one example of this lack of understanding.

    Very simply: The DVD drives that are made for PC's are required to not return the encryption key for the DVD mpeg files *unless* the software requesting the key has authenticated itself with the DVD drive itself.

    This is where the css-auth comes in. It use[sd] an authentication key originally ripped out of the xing DVD-player-software. (I gather they've got a bunch more as well already).

    Can we just copy a DVD through my PC DVD drive without css-auth? Yes. Will the copy be playable in a normal DVD player/device? No.
    Why not? Because your the DVD drive will not give you the key to decrypt the DVD disc's data until you run css-auth.


    What is really amazing, is that so many people think the DVD group is suing the makers of css-auth with a complete lack of understanding of the technology. No, it's the people protesting against the lawsuit who seem to know nothing about the technology. I found plenty of documentation on this subject with a google search in a matter of minutes.

    Is what the css-auth authors did illegal? I don't think so. Was it unethical? Perhaps. I would say that creating this software is kind of like if you are given a key to a store, and you have a personal copy made. However, by distributing this software, you would be analogously making a copy of the key to this store available to anyone who wants one. Neither of these is really particularly illegal, but the ethics behind it are pretty shady.

    This analogy definitely breaksdown when you consider the sheer cost of copying DVDs with css-auth, but in time, we'll have the capacity to store hundreds of full length DVD films on a hard drive.

    The only way I could see of perfectly copying the data from a DVD without something like css-auth, would be to run the DVD-player software in a debugger. You could get less perfect copies by capturing the memory regions where the video output from the player is going probably.
  • The sad thing is, it would not be unprecedented

    Yeah. And in the past, we lost. :(

    Not this time, though. Because this time, there are far more of us zealots than they realize. :) And this time, we're not just a few marginalized phone phreaks, or what have you.

    I think the recent proliferation of Linux and other free software has been a tremendous education for computer professionals everywhere; they've learned to value freedom.

    DeCSS may be a small issue, (at least, for those of us without both a DVD drive and Linux :P). But is another piece

    Yup. Which is why I care a lot about the outcome of this case, even though I'm so disgusted by this whole thing that I'll probably never want to own a DVD.

    Cheers!

  • by Kris_J ( 10111 ) on Tuesday January 18, 2000 @08:14PM (#1360154) Homepage Journal
    Any chance you can give details; News service, author, article - that sort of thing...
  • I certainly think there should be more moderator points going around anyways...
  • esr posted a rather scathing rebuttal to the DVD CCA on OpenDVD.org here [opendvd.org]. He even went so far as calling them frauds and liars. True, though. Check it out, deffinately a good read.
  • Slightly OT: I believe the PSX2 will play DVDs. I assume that, like the PSX1, there will be mod chips available to get around the region coding. I know that given the above things actually happening, I will be getting my PSX2 modded, legal or not. Being in Australia can really suck when it comes to some games and movie releases...
  • Hey, incubus. How's sushi? :)

    > Is what the css-auth authors did illegal? I don't think so.

    Which, all misconceptions aside, is the heart of the matter. Cheers!
  • I would guess the Google people were referring to their business practices. Theirs is a selective search engine with only a small part of the web covered. As such, it behooves them to link sites with quality content. I do not think they meant responsibility as in legal liability. I think they meant responsibility as in we link to sites with useful/informative content.
  • I think it stinks, but all you have to do is uncheck the "reparent thread" option in your preferences. This will make all threads started by a -1 comment invisible.

    I agree, however, that this is a MAJOR problem.


    If you can't figure out how to mail me, don't.
  • I think this whole DVD issue is getting looked at wrong in the face of justice! Okay, so maybe DeCSS is/should be illegal, but isn't it also illegal to monopolize DVD? Windows does DVD, Apple does DVD, why can't Linux? You would think that after everything Microsoft has gone through in court, the courts would start looking at this issue different instead of helping the monopolization of DVD! Is there anyone else in this forum that agrees (and thinks we should start mass-emailing the right people on Capitol Hill, which would be who?) and doesn't have something stupid to say like First posting?
  • I think the point has been made repeatedly that;
    • Reverse engineering is legal, so long as you haven't agreed not to
    • It's quite possible to reverse engineer Xing's player without even being exposed to the licence agreement - certainly you never need to have agreed to it.
  • In copyright law there is something called "contributory infringement" that seems to be vague and poorly defined. The SPA has a policy statement [siia.net] that asserts that an Internet Access Provider who allows serial numbers and cracks to be downloaded from their system is liable for contributory infringement. That may or may not be the law, but it wouldn't be much of a leap to claim that hypertext links might also constitute contributory infringement.
  • Oo! Moderate the above up. This is a very interesting comment on the cascading effects of making linking illegal. If linking to an illegal site made the linking site illegal, you wouldn't just contaminate small sections of the web, the entire web would become illegal, starting with all the search engines...
  • Kind of odd that they wouldn't have gone and found a link to DeCSS for this article...
  • I cited the wrong search engine. IBM R&D came up with a search engine that ranks sites by what sites link to them. It is discussed in SciAm. Then adds value to the sites that are linked from with high tier link scores. It repeats this iterative process many times and uses the highest ranking to recommend sites. It is very cool in that manner. I believe it is called Cleaver however I may be wrong.

    Sorry Again,

    Nate Custer
  • For the usual breed of Slashdot troller, indeed good suggestions.

    However, we are disappointed with the recent lack in originality or artistic merit of Slashdot trollers. We aren't out to cause a ruckus or create massive off-topic threads, and we frown upon those less reputable trollers who do all-caps racial posts, rhyming threads, and the like.

    As for AC posting, we appreciate your thoughts, but we are students and cannot troll every article; and due to the rigorous editing and thinking that goes into our trolls, we only accept the very best. Thus, at two articles a day or less, we will not hit the moderation lockout. And, we feel that the anonymity gives people license to troll without basis or thought, decreasing the quality of trolls.

    We will be glad to submit some more work if it will ease our entrance into the noble family of Slashdot trollers.

  • > You cannot copy a DVD without css-auth.

    Umm... we are not talking about silly desktop dvd drives here; anybody seriously trying to pirate a dvd will do what the pirates of CDs have done all along: buy a professional CD/DVD press. The same ones that make your dvds right now. Sure, it may cost lots of $$$, but they are pros. They will sell 10k+ copies of a dvd, and are into profit. Just look at southeast asia...
  • The alternative is of course to browse at +1 which removes _ALL_ the noise.
    That's what I do, have for ages. I also Meta-Moderate a lot, just to pickup some extra posts of note. If I didn't Meta-Moderate I'd never have even noticed the increase in junk ACs. Kudos to /. for a system that works!
  • Download.com is where I got my copy [mailto] of DeCSS [cnet.com], but I just checked now, and it's not there anymore. Looks like they bowed to pressure just like everyone else.

    ~Sentry21~

  • And I think that big industry is *less* worried about professional "pirates" than it is about home users swapping data.

    Besides, the big-time "pirates" will *always* find a way to do it. But home users won't "pirate" data if it's prohibitively difficult or expensive to do so.
  • Hmm... I wonder what we'll do when DVD Audio comes out? Would it even be feasible to brute force it, say, over the Internet with a distributed processing project? I dunno... 128 bits. Is that even crackable?
  • by Anonymous Coward
    Could the DVD CCA be attacking a bunch of young people because they thought that those people were too poor to defend themselves from a crack team of lawyers?

    Nah, what they're really trying to do is spread Fear. Fear will keep the local systems in line. Fear of being hauled into court because some dork with an angelfire account put a link on his web page. They just want people to think twice about doing that.

    The only thing that has me worried is the fact that the same people that own the DVD CCA also own the press in the US. I have yet to see even a single news article or report in favor of the defendants in this case.

    That's because the newspapers etc have just posted as the text of their stories the press release that was faxed to them by the Big-Name Defendants. I used to work as a temp for a minor government agency, part of my job was faxing press releases out, and the next day, I'd see the letter I had typed up, verbatim, featured on page B6 in a tiny column somewhere. Or if they modified it at all they still kept much of the phrasing intact.

  • You're absolutely right. But at least it's on topic. ;-)

    BTW...40% of referrers so far think the OSS side wins. :p
  • by werdna ( 39029 ) on Tuesday January 18, 2000 @09:12PM (#1360194) Journal
    Fact: It is perfectly legal for a person in the US to make an archival copy of any digital media that they own as long as they don't distribute them and as long as they only make a _reasonable_ number of archival copies. Reasonable being whether or not the judge thinks you were trying to pirate the software!

    Probably not true. 17 U.S.C. s. 117 [cornell.edu] does not apply to "any digital media," but is limited to computer programs. I suppose a tortured construction of hte definition of computer programs might be able to draw some digital content not routinely considered to be a program, but imagine the courts would re-read Contu and disagree.

    Further, there is ample case law that states that only the OWNER of the copy has an archival right. Re-read your license to discover that you are merely the bailee of the vendor's copy, and you are SOL.

    Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's.

    I doubt it. Please cite the case. Even if that were true, the case would probably not survive the Digital Millenium Copyright Act anti-tech provisions.

    Why do you think all the software vendors stopped copy protecting their software?

    Because customers demanded it, and copy protection wasn't stopping much piracy. Trust me, I was there.
  • Which is why it's essential to get this case in the courts and have the DMCA overthrown.

    Personally, I am not much in favor of the trend in copyrights in recent years. Copyrights are a *temporary* monopoly granted to the creator, with the idea that the monopoly is worth creating content for, but the limited life of the monopoly prevents creators from sitting on their asses (which is not good for the development of the arts and sciences). IMHO make copyrights apply only for the life of the creator, or in the case of a corporate entity (a rant for another time) 10-25 years.

    Businesses are proving to be the least capitalistic of anyone these days - afraid of competition, afraid of work, and willing to subvert the government in order to get their way.
  • VCRs are also legal for those of us which use them as tools for our own content creation. If I created my own tape (or DVD), and owned the rights to it entirely, who has the right to stop me from watching it on anything I want? Or duplicating it in my home in small runs?

    VHS and DVD authorship should _never_ be limited just to those of us with funny-sounding names like "Sony" or "Disney."
  • Due to the absolute crap in this particular topic especially the AC further down who decided to reply ad nauseum to disrupt the layout of the page, I have set my theshold to +1. Initially I resisted coz I didn't want to miss the worthwhile AC posts (of which there are a few).

    Now it's simply too much and I had no choice.

    Having said that, I am absolutely loving the +1 threshold. I am seeing stupid posts disappearing off my screen leaving the good stuff behind at a rapid rate - I'm not going back to 0 threshold.

    For those AC that want to make decent contributions to /. and still remain anonymous, my suggestion would be to setup a second account for just anonymous posting.

  • I had a thought a long time ago about this. My thought was that Moderators should be given Unlimited -1/10 OTTroll points, which any given moderator can only apply once to any given post. Then when 10 Moderators have all agreed that a particular post is obvious off-topic trolling (or the similar), that post loses 1 point without any Moderators having had to give up Mod points unnecessarily.

    I believe this would keep down the noise.
  • by ewhac ( 5844 ) on Tuesday January 18, 2000 @09:53PM (#1360202) Homepage Journal

    Today, the DVD Copy Control Association and the EFF once again met in court, this time to argue for and against the ordering of a Preliminary Injunction against, basically, the entire Internet, forbidding further dissemination of DeCSS, the source code module that decrypts DVD MPEG streams. After today's hearing, there should be no doubt in anyone's mind that shrinkwrap license "agreements" are monsterously unethical and should on no account be allowed to stand.

    It is worth noting up front that I am an adamant, vociferous opponent of these so-called "agreements", so I hope the reader will excuse some editorial bias. (Individuals interested in my editorial on the subject can find it here [best.com].) Also, events in court did not occur strictly in the order I will present; I will be grouping together related concepts to make them easier to compare.

    Court began promptly at 13:30, and counsel for plaintiff and defendant introduced themselves (the names went by too quickly for me to get most of them). Judge Elfving indicated that he would not render his decision today, but would rather consider the arguments and filings before him and render a decision at a future time. He was unwilling to commit to a specific date, but indicated that it would not be overlong. Judge Elfving then invited plaintiff's counsel to present their argument.

    Jeffrey Kessler began his argument with the following question: Can a user extract trade secrets in violation of a shrinkwrap agreement? A lot of other arguments were presented, but it seemed to me that the DVD CCA's entire case proceeds from this single precept.

    In order to prevail in a trade secret violation, the plaintiff must show:

    • That a trade secret exists. Trade secrets must posess information, must derive value from their secrecy, and that the secret's owner must employ reasonable measures to protect that secret.
    • The secret was misappropriated. CCA argues that "improper means" were employed to create DeCSS.

    CCA's contention is that the reverse engineering employed to discover the CSS algorithm was prohibited by Xing's shrinkwrap license "agreement". (Kessler reiterated this point with some force throughout the proceeding.) Since the reverse engineering violated this contract provision, the algorithm discovered within was improperly obtained due to breach of contract, and is therefore a trade secret violation. DVD CCA therefore argues that they are entitled to a Preliminary Injuction forbidding further dissemination.

    Kessler went to a lot of trouble establishing that the original source of DeCSS was Xing's player. An expert's affadivit asserts that the original DeCSS release contained only Xing's key, suggesting that it was the Xing player that had been reverse engineered. Presumably, by establishing Xing to be the original source, they can invoke Xing's "license" that prohibits inspection.

    Kessler made the assertion that, even if the "clickwrap" license had somehow been avoided, it still applies and is in force, since the license stipulates that assent to the contract is made, not by clicking on "OK", but by installing and using the software.

    Kessler also seemed to go to some lengths to attempt to establish when DeCSS made its first appearance, which appears to have been the binary-only release on 6 October, 1999 from the group M.O.R.E. (Masters Of Reverse Engineering). Subsequent to that, Stevenson's work (where he attacks the hash rather than the keys) appeared around 25 October, 1999. I presume he did this in an attempt to establish that any release subsequent to these dates "must" have come from the "improperly obtained" algorithms.

    DVD CCA cited several court cases supporting their petition for a Preliminary Injuction, which were granted forbidding further dissemination of materials under dispute (notably, the Religious Technology Center (Scientology) vs. Netcom). Kessler further asserted that no court case has ever held reverse engineering to be proper.

    Kessler also cited the recently effected Digital Millennium Copyright Act which, as a matter of "public policy", forbids reverse engineering. However, he went on to state that DVD CCA is not bringing suit under the DMCA; they are bringing suit under the Uniform Trade Secrets Act.

    The plaintiffs also asserted that the "hacker community" clearly knew that DeCSS was obtained improperly, and proceeded to quote from postings in Slashdot discussion fora made back in July where random people opined that a DVD player for Linux might not be legal to develop. (There were no in-court mentions of Natalie Portman or hot grits.) Kessler asserts that this public discussion validates their claim that the defendants "should have known" DeCSS is illegal.

    The plaintiff also stated that the fact people may have been trying to develop a DVD player for Linux is entirely beside the point. Moreover, he stated that DVD CCA was not discriminating against Linux, that they were more than willing to license CSS to any "credible party" who wanted to develop a DVD player.

    Finally -- and I think this is fairly significant -- DVD CCA made the observation that, if this were a copyright case, there might be a provision for reverse engineering under the Fair Use doctrine. However, there is no such provision in Trade Secret law, and the reverse engineering is therefore improper.

    Kessler then turned the floor over to Robert Sugarman, who proceeded to disparage the EFF's First Amendment arguments. He repudiated the assertion that the defendants were news sources, and that they should not be accorded the protections available to newspapers. He asserted that the defendants are doing much more than engaging in First Amendment-protected discussion on this issue.

    He repudiated EFF's citation of the Bernstein case. Copyright was at issue in Bernstein; this is a Trade Secret issue.

    He also likened the obtaining of the DeCSS algorithm to breaking into Coca Cola's inner sanctum and stealing a copy of their secret formula. (In fact, the analogy of Coke's secret formula figured prominently in the plaintiff's arguments.)

    Then he dropped a small bomb and stated outright, in open court, that they seek to enjoin not only hosting of the DeCSS code, but links to the DeCSS code. He asserted that, because links provide "instant access" to the disputed material, they should be forbidden as well.

    He attempted to discredit the Open Source (nee "Hacker") community's motives by bringing to the court's attention the DeCSS Distribution Contest [zgp.org], and Copyleft's new DeCSS t-shirts [copyleft.net], painting it as juvenile and irresponsible.

    For some reason, he also called attention to the recent cracking of PacBell's ISP accounts, and CDUniverse's credit card database. Presumably, he was trying to associate the criminal activities of these individuals with the activities of the defendants in the case, both of which "clearly" demand decisive action from the court.

    Finally, Mr. Sugarman asserted that, if a Preliminary Injunction is not granted, the message it will send is:

    • Theft of trade secrets is OK,
    • IP law is no longer viable,
    • It is "not safe" to publish in digital media.

    These remarks by the plaintiff's counsel consumed about an hour and a half. Judge Elfving called a 15 minute recess, after which counsel for the defense began.

    The first guy (whose name I did not catch) seemed to rely more on bombast and specious details than on concrete questions of ethics and law. Nevertheless, he did raise some interesting points.

    The Scientology case was raised again, this time to point out that the Preliminary Injunction granted and affirmed in that case applied only to one person, not to the entire Internet. He went on to cite the cases of Sega vs. Accolade and Vault vs. Quaid, cases in which reverse engineering was upheld as permissible.

    He asserted there was only one real defendant in this case, the one who allegedly did the "dirty deed": Mr. Johansen of Norway who originally developed and published DeCSS. If there is indeed a legitimate action that can be taken, it is solely against this individual.

    He turned the plaintiff's Coca Cola analogy on its head by stating that one could buy a can of Coke, take it to a chemical analysis lab, figure out what it was made of, and publish the results. Such an act would be entirely proper under the Trade Secret Act under which DVD CCA is suing.

    The defense also argued that trade secret law is a "relational tort," enabling an action of one party against another. It does not protect the secret itself.

    He asked, "Where is Xing in this case?" If, as submitted, DVD CCA's license requires licensees to take reasonable measures to protect their trade secrets, then Xing has clearly failed in this obligation. Further, he asserted the DVD CCA does not provide code itself, but expects the individual licensees to develop compliant code. Therefore, any misappropriated technology belongs to Xing, not to DVD CCA.

    Finally, he made a highly dubious assertion that there was no evidence submitted to establish that DVD CCA were the legitimately assigned licensors of CSS (which has been developed by Matsushita and Toshiba), and therefore were not empowered to bring this action. (This was readily debunked by the plaintiff during rebuttal.)

    After he finished, Eben Moglen [columbia.edu], Professor of Law from Columbia Law School took over. I don't think I overstate the issue when I say this guy absolutely kicked ass. Besides being a good orator, the man clearly understands technology as well as law. He's written a treatise on the issues of intellectual property in the digital age entitled Anarchism Triumphant: Free Software and the Death of Copyright. [columbia.edu]

    Mr. Moglen basically proceeded to shred the plaintiff's arguments. He pointed out that DeCSS has nothing to do with wholesale copying; DVDs may be bit-for-bit duplicated and will play in any player without the use of DeCSS. He debunked the assertion of "irreparable harm" to the movie industry by doing some basic bandwidth math showing that downloading a 5.1 gigabyte movie will take you 30 hours (DSL speeds), and if you have a direct backbone connection, it'll take ten hours. Wholesale copying of movies in this manner is therefore not a realistic concern.

    He raised the plaintiff's assertion that, while it may not be economically viable to copy movies today, these technologies will become cheaper and more available in the future. However, such theoretical future damages are not at issue; the court need only concern itself with what is happening now.

    Mr. Moglen went on to describe CSS as extremely weak, and outlined Stevenson's novel attack against the cipher, which involves attacking the hash value to reconstruct the "title key" by which the MPEG stream may be decoded. In such a case, none of DVD CCA's keys are employed. The title key for any disc can be cracked on a Pentium-III in about 18 seconds. He drove home CSS's weakness by mentioning that Mr. Johansen of Norway is 15 years of age. Thus, the trade secret at issue must not have have been very secret, as it was literally child's play to discover it.

    With all this, Moglen asserted that no cause of action remains because no trade secret remains. The "secret" in question was obtained by legitimate means, and Stevenson's subsequent work illustrates that none of DVD CCA's alleged secrets need be involved in decrypting a DVD. Had the DVD CCA acted more swiftly in restraining Mr. Johansen, they might have a cause for action. As it is, they've waited too long.

    When he concluded, Moglen received light applause from the gallery as Judge Elfving asked for rebuttal from the plaintiffs.

    Mr. Kessler assailed the work of Stevenson, saying that it proceeded from the improper DeCSS code by Johansen. Therefore, Stevenson's work, though novel, is "contaminated" by Johansen's alleged breach of the Xing "license", and the trade secret is still protected.

    He argued against defense assertions that no license was in force, saying basically, "Yes, there was!" He attacked EFF's citation of the Sega case, stating that it was a copyright case, and that reverse engineering was held to be proper under Fair Use. This is a trade secret issue.

    However, he went on to call attention to the DMCA again, stating that, as a matter of "public policy", reverse engineering is held to be improper. Then he flips again, and says they're not citing DMCA, only the Uniform Trade Secrets Act (which has no provisions for fair use).

    Finally, the floor was turned over to Mr. Sugarman who (under pressure of time) characterized Professor Moglen's arguments as entertaining but irrelevant. All DVD CCA seeks, says Sugarman, is to take down the DeCSS code and all links to the DeCSS code. They are not seeking damages, nor are they seeking to quash discussion of the merits of the algorithm; only the trade secret itself.

    Judge Elfving then thanked counsels, said there was a lot to think about, and would render his decision as soon as possible. Court was then adjourned at around 16:50.

    My Analysis and Opinion:

    We may readily concede that CSS was a trade secret, developed in secret, and made available under a comprehensive contract that obligated licensees to maintain the secrecy of the techniques used. It also seems fairly certain that the initial cracking of the CSS involved taking apart the Xing player and seeing how it worked. In order for this action to be a trade secret violation, Johansen's disassembly would have to be an improper use.

    In order for it to have been improper, Johansen would have to be laboring under an obligation to maintain the secrecy of the Xing code and the CSS algorithm. The DVD CCA asserts that this obligation existed in the form of the shrinkwrap "agreement" which restricted, among other things, reverse engineering. So the DVD CCA's entire case hinges on whether shrinkwrap "licenses" are enforceable.

    Let us put aside the fact that Johansen is Norwegian, where different laws and standards apply; and let us also put aside the fact that he is a minor, who likely can't be bound to contracts without parental consent (again, Norwegian law may differ on this point). Let us concentrate instead on this contract that, by the most tenuous forms of assent, may be considered in force and remove from the licensee a litany of valuable rights, including reverse engineering.

    As I stated earlier, it is my adamant position that such documents are pure fiction; that they are not and should not be taken seriously. These instruments have little basis in law, and no basis whatsoever in simple ethics. They run counter to the real and reasonable expectations of consumers when they purchase software; that a sale has taken place, and they hold title to that particular copy of the software, subject to copyright restrictions. The "agreements" seek to alter the terms of the sale after the fact.

    Further, these contracts attempt to escape vendors from the provisions of consumer protection laws, "lemon" laws, and remove from consumers their rights under Fair Use provisions of copyright law and, in some cases, the First Amendment (by forbidding discussion of benchmarks). And all one needs to do to assent to such onerous conditions is to, "install and use the software."

    If A.H.Robins had attached such a license to its Dalkon Sheild, would it have been upheld? Would thousands of women around the country have found themselves unable to seek damages because they had "agreed" to hold A.H.Robins harmless? If Black&Decker attached such a license to its power saws saying you could only use Black&Decker saw blades, could it be enforced? We might concede they could cancel the warranty, but could they sue you for breach of contract, as DVD CCA has done over CSS?

    Even if we were to presume such licenses are enforceable, how could they be said to apply to minors, who cannot be bound to contracts without parental consent? Must we then require that computer stores not sell software of any kind to anyone under age 18?

    The idea is worse than ludicrous, it is offensive. No credible argument can be brought to bear that shrinkwrap licenses have any constructive use or benefit -- for consumers or publishers -- much less any foundation in ethics and basic human decency.

    Some suggest that the "parade of horribles" that shrinkwraps enable has not happened, and is not likely to happen. I submit that a California corporation seeking a broad injunction, reaching beyond the borders of the state and even the country, to constrain domestic and foreign nationals from engaging in legitimate, ethical behavior to be a "horrible" that even the most paranoid among us could not have anticipated. There can be no further doubt that shrinkwrap licenses are a big, fat, ugly problem, and must not under any circumstances be allowed to stand.

    Those who might suggest the GPL is weakened by such a position need not worry. While most commercial software "licenses" purport to constrain use, the GPL constrains copying. Absent a license of any kind, you still have the right to use your lawfully obtained software. You would not, however, have the right to make and distribute copies; the default conditions of copyright law apply. (This is true even if you're a minor.) Right to Use is concomitant with purchase; right to copy is not.

    It is difficult to predict how the Judge will rule. Unlike the TRO hearing, the plaintiff was very well prepared. Both sides presented their arguments well. Judge Elfving stated that he wishes to be thorough, and will doubtless spend a good deal of effort considering the arguments. Still, both sides were articulate, and it will depend on who Judge Elfving chooses to believe, so the decision could go either way. Cross your fingers...

    Schwab


  • "moot" -- you are correct.

    spell check doesn't ketch all the errors.

    sorry.
  • Human beings make mistakes, you don't have to flame everyone who makes a simple typo. And I think that it's the content that matters, not the tool that we use to express it. MS or not.
  • No, actually these facts are true. You _can_ copy a DVD without the key, just not with unmodified commodity PC DVD-ROM drives. The people who will be able to copy off working DVDs bit for bit are the ones the companies really have to worry about, the larger pirates with the resources to buy or hack a DVD mastering drive. The average consumer, who might rather play a backup disc and leave the clean original in the case (anyone remember this from the days of floppies?) is the only one truly shafted, because their drive will not allow them to create a copy. Given, the smaller pirates might suffer temporarily as well, but the software/hardware hacks that they need to make it happen would just end up on warez and serialz pages anyway. DeCSS will end up on far more sites than that, _because_ of the CSS lawsuit.

    The industry knows their encryption is weak, and thus will be quickly defeated. The only reason they might be serious about it is because the movie industry doesn't want to release digital copies verbatim to consumers without protection. The CSS encryption was a small and ultimately ineffective bandage the DVD industry applied to their format to coax the studios to use their technology. If the studios should be upset with anyone, it's the CSS people. This lawsuit is likely just them covering their own asses.

    Regardless of its purpose, the lawsuit is very dangerous from a consumer rights perspective. I've stated before (perhaps too strongly, this fiasco does make me rather angry) that I'll never buy a DVD under these conditions. I would recommend that others avoid them as well. Their involvement in defining our fair use rights is a conflict of interest at best. We cannot give our rights up just so some corporations can make a few extra million in pocket change. That's shady ethics if I've ever heard of it.
  • Thanks much, time to talk to my IP lawyer, I mean Stepmom and get her ruling on it.

    Nate Custer

  • Burn the lobbiests. Or even better put them out of business. Make them go back to selling used cars, or con'ing old ladies, or whatever it is that hell originally sent them here for.

    It seems that courts are the only places where government officals are even remotely interested in what's good for the average Joe. The judicial branch is special because when a judge takes money to support one side of a case it's not a contribution, IT'S A BRIBE!

    Campain Finance Reform is the only way we will ever be able to rest on such issues (if only for five minutes.)

    I realize "The price for freedom is eternal vigilance.", but dumb bills and acts are at an all time high. I believe the forces on the side of public interest will reach the point where they are financially overwhelmed by the sheer monetary power and swing of offenders like this. We must cut off the corporate veto on our rights, before it is to late.

    Remember which candidates where supportive of campain finance reform at the polls this year.

    Matthew Newhall

  • the ones the companies really have to worry about, the larger pirates with the resources to buy or hack a DVD mastering drive

    I can't say I buy this. Sure the commercial pirates are a problem, but widespread copy sharing is also capable of taking a big bite out of sales. We all know people who will clone a CD for a friend at the drop of a hat. Each individual instance doesn't cost the producer that much, but these costs do add up.

    The film companies are fighting a battle on two fronts here. They know that technical restrictions will not stop well-financed pirates, but they have other ways of going after them, often involving SWAT teams and trade treaties. On the other front they are trying to minimise informal copying as well, which in practice has to mean going after DeCSS and related software.

    Paul.

  • DeCSS is just an example... if they win, you can bet they'll go after css-auth and everything similar...

    But in the case of css-auth, it is suddenly pretty clear that the intent is not to copy DVDs, but to play them under Linux. So at least initially, they can't make a case for a judge that "css-auth" is a bad thing.

    So, they do have a much better case if they go after deCSS instead of css-auth.

    Roger.
  • by KMSelf ( 361 ) <karsten@linuxmafia.com> on Tuesday January 18, 2000 @11:42PM (#1360215) Homepage

    Schwab, excellent reporting job. Damn I wish I'd been able to attend the session!

    Eblen Moglen, if you don't know, is a Columbia Law School professor, and has provided legal assistance to the FSF for years. His views are rather leftish and he's very much the consumer/public advocate. His legal arguments are superb. I've read his stuff, it would have been wonderful to see him in action.

    The DeCSS cases are very interesting in that they're pushing the limits of two rather tenuous legal constructs: shrinkwrap (in particular, American commerce law, which is actually state law, applied against a foreign national minor for actions in a foreign country), and 17 USC 1201, the anti-circumvention measures added to copyright law in 1998 by the DMCA.

    Shrinkwrap has been under attack for years. While there is some justification to holding that some legal obligations may be made or liabilities avoided by "shrink wrap" agreements (one landmark case involves cruise ship liability attached to ticket purchase), the extant claims attached to most software these days can only be seen as ludicrous.

    The anti-circumvention provisions of copyright have been tested somewhat in actions by Sony against

    ...and I suppose that if T-shirt slogans are juvinile, that the Vietnam war protesters really didn't warrant serious consideration.

    To clarify your points about the GPL vis-a-vis shrinkwrap licenses:

    • Shrink wrap licenses restrict rights you would otherwise have if the license did not restrict them. Eg: Reverse engineering rights. They also grant other rights.
    • The GNU GPL grants rights, reserved by Copyright law in a highly uniform fashion worldwide, which you would not have if the license did not grant them to you.

    Typical shrinkwrap licenses are subtractive instruments. The GPL is an additive instrument.

    One point of disagreement. I think that there are conditions, useful, and very limited, under which shrinkwrap agreements are an acceptable means of reaching a codified agreement between two parties. You do this all the time -- if you park your car in a private lot, buy a movie ticket, book a flight, etc. However, the rights which can be reserved, and the rights you are required to give up, under such agreements should be very tightly limited. I do agree strongly that the current situation involving shrinkwrap/clickwrap licenses is insane, and that the likely changes under UCITA are even worse.

    What part of "Gestalt" don't you understand?

  • I'm talking here about what I know for France: most EULA are UNenforceable here. Probably, even illegal. The infamous warranty that does not warrant anything, for example, is illegal according to consumer groups.
  • Hmm... I wonder what we'll do when DVD Audio comes out? Would it even be feasible to brute force it, say, over the Internet with a distributed processing project? I dunno... 128 bits. Is that even crackable?

    Short answer: No.

    Longer answer: Not now, not anytime soon.

    In-depth answer: Consider the fact that distributed.net has spent over two years and is about 20% done on a 64 bit cypher. Consider that a 128 bit cypher is 18446744073709551616 times stronger than a 64 bit cypher. Of course, if they keep the same basic format there are about 400 correct answers, so it's actually only 46,116,860,184,273,879 times stronger than a 64 bit cypher. Still, it won't break to brute force.

    I've glossed over a few facts in an effort to be brief, such as the relative computational complexity of the two alogrithms, but the argument still holds pretty well nonetheless.
  • And you think that the judge is going to decide that this simple trick on the part of the software vendors is going to overturn a previous decision that you're allowed to make normal archival copies, depending on how your backup system works?

    I have high confidence that the judge would properly apply the applicable law to the facts, and come up with a result different from the one you suggest. Ownership clauses are enforceable as such, and that there is ample case law to support it. There is no right to make archival copies, except for software under Section 117, and that section applies only to the title OWNER of the copy.

    You allude to a "previous decision" to the contrary, but in years of high-tech practice I have not seen such a case. On the other hand, I have seen cases holding quite to the contrary (e.g., Apple, MAI, Southeastern). Perhaps you can provide citations for the proposition you claim?

    This is not to say that making archival copies for personal purposes wouldn't be fair use -- I think there is a strong argument that it is. I'm just saying that the proposition you cite, suggesting there is law clearly supporting your arguments, is inconsistent with my experience.
  • You'll find my last comment on this issue in the pollbooth. I interpreted the T-shirt poll to be about MPAA goons inspecting T-shirts for the CSS code. Anyways, the point is, would any of this have happened if instead of releasing a command line utility for decrypting DVD's we released a player whose decryption engine was only useful in that player. The problem is the MBA's who license this stuff can't make the connection between command line utilities, UNIX pipes and perl scripts, that the computer scientists can.
  • There can be no further doubt that shrinkwrap licenses are a big, fat, ugly problem, and must not under any circumstances be allowed to stand.

    I understand that shrinkwrap licenses are not something that you are happy with, but they have been allowed to stand. In Pro CD v. Zeidenberg [emory.edu] the Court of Appeals of the 7th Circuit has held that shrinkwrap licenses are enforcable.

    I note that the appeals decision specifically states that "Shrinkwrap licenses are enforceable unless their terms are objectionable on
    grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are un-conscionable)." Now I agree that many clauses of shrinkwrap agreements are un-conscionable as they take away rights granted by Federal Copyright law. I hope that we get a good case to test some of these clauses.
  • Fact: You don't need to decode the DVD's in order to copy them.

    Fact: You do need to decode them in order to watch them or to make an archival copy of them.



    Ok, whether you think the case is right or not, this line of reasoning isn't going to go anywhere. In fact 1 you state you can make a copy of the DVD disc without decoding it (which is either true or not true depending on who you listen to). In fact 2 you state that you need to decode the DVD to make an achival copy of the DVD. Which one is it? Can you make a copy of the DVD without decoding it (as stated in 1) or do you need to decode it to make a copy (as in 2). This is the thing that I think is going to win the case for the DVD companies. Everyone seems to be arguing that they have a right to make an archival copy, so they need to be able to decode the DVD, and than they say the encryption doesn't stop people from making copies of the DVD, thus negating the first part of their arguement. If you plan on winning the case, you need to decide which merit your going to fight on, because using both almost guaruntees a loss.

  • by lweinmunson ( 91267 ) on Wednesday January 19, 2000 @05:28AM (#1360238)
    First the obligatory Slashdot IANAL. However I used to own a used book store and got curious about the history of used books one day because I noticed that some very old books had something very similar to a shrinkwrap printed on the first page of the book. Basically it stated that it was illegal to resell this book or to sell it for less than the cover price. Well I dug around and found out that a case covering this went all the way to the Supreme Court in something like 1908. It looks like the book publishers at the time were trying to stop the sale of used books and so began printing these notices in them to make it illegal to sell a used book to a store and then have the store re-sell the book and thus cut into their profits. Now obviously this is a case of the industry trying to make their own law and not lobby congress for it (maybe it was harder to bribe our congressmen back then, but I doubt it.) Anyway it looks like they got all their lawyers in a huddle and wrote this big legal mumbo jumbo that was supposed to cure all their woes. Well unfortunatly the Supreme Court held that since it was simply printed, and that it could be held as un-available until after the sale that it had NO legal force at all. For the agreement to be binding it would have to show up at the cash register as you purchased the book and you would have to read it and sign it right there before any money changed hands.

    Now how does this apply to shrinkwraps? Exactly the same way. The Supreme Court is very reluctant to overturn previous decisions. They may amend them, but can you imagine what would happen if all of a sudden you could not sell you text books back? Or could not sell your car because of some small print under the hood? I would think that the plaintiff's in this case are already on very thin ice by citing a shrinkwrap agreement that has never really been tested in court at a high and very publicized level (at least that I know of.) Note that the shrinkwrap doesn't cover things like piracy because it's very easily enforceable under copyright law (you can't go by a William Gibson book and then print out 3 million copies at kinko's and sell them can you?) The blurb about copying software in the shrinkwrap appears to be mainly to tie it in to other law and make it look more official. Now if the shrinkwrap is unenforcable, and if the person who did the code is probably too young to be bound by it anyway, then how can they win this case?

    I think that with enough legle muscle they might get an injunction at some point that would be appealed and could drag this case on for years. They had been betting on the fact that they have more money and lawyers and can litigate this for the next decade if they have to, but it looks like they didn't count on the EFF getting involved. I can also see the ACLU and other civil rights organizations getting involved in this if they manage to get links pulled as well.

    Les Weinmunson
  • Think fishing--trolling your bait to see if anyone takes it. Rather than a fish, the reaction is what the troller seeks.

    The current usage comes from usenet, where clever trolling was once respectable--wrap something nicely to see who bites. Blatant trolling, such as a recipe for cat casserole in net.pets, has always been disrespectable. Kremvax, for example, was an excellent troll. I've never heard of a clever troll based on crossposting.
  • First, let me thank Schwab for his excellent summary of the day.

    Second -- let me suggest another argument for the defense -- I know it's a day late and a dollar short and this long after the posting it will never be read on slashdot...

    The major argument of the DVD CCA is that the reverse engineering was improper, and all future reverse engineerings are then tainted by that improper reverse engineering.

    Would a company that then enlisted someone to 'improperly' reverse engineer their trade secret then get an unassailable secret; secret for all time with no possibility of use by anyone, anywhere? Because clearly any future revelation would have been tainted by the original one.

    This would be a protection far stronger than patent protection.

    This is a one-step reductio ad absurdum argument that I would think would get the judges attention. He wouldn't want to the be person responsible for superseding patent protection; for basically destroying patents and other so-called intellectual property law.

    thad

  • Fact: You may defeat any copy protection that is in place in order to make your archival copies. This is a court case that we won in the early 1980's.

    Beware. Morally, you have the right to do that. But The Law has changed, and the 80s court cases may be less relevant. Whatever spirit or soul that Sonny Bono had was brutally sacrificed in an unholy offering recently. The legacy of that evil is called DMCA.

    And the bastards in Washington actually passed it. If that isn't proof that the government is for sale, I don't know what is.


    ---
  • 2600 [2600.com] have been hit by a preliminary injunction [2600.com] about the DeCSS, basically banning them from thinking about it.

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