Comment Pessimistic View (Score 1) 153
Am I the only person who thinks that this case may very well fail, on sound legal grounds?
There's been a lot of argument about how DeCCS is used to view, not copy, DVDs - and that a bit-by-bit copy can be achieved without it. Other people have already explained that it isn't that clearcut.
IANAL, but if I were the CCA I would present the following argument:
This algorithm is a trade secret. The algorithm was figured out by someone using the Xing decoder. They had clicked a box agreeing not to reverse engineer the algorithm when they installed it.
Hence the algorithm and deCSS source code is a trade secret which was obtained improperly. Therefore according to law, every copy or derivation of it is tainted and must be removed from the public. End of argument.
You must break that chain of reasoning somehow. Your arguments?
1. "He did not click the box to agree to that. We all know that programs can be installed with the EULA agreement stage bypassed, with a little hacking". I say - you must prove that this EULA was in fact bypassed in this case(of course you can't, there is no evidence around). Remember the Intel/AMD case, when AMD had to go to extreme lengths to _prove_ that they had figured out how intel's chips worked without reading the development documentation. Simiarly, the burden of proof is on you in this case. Since there is no evidence, you are stuck.
2. "He was a minor and so could not enter into a binding agreement not to reverse engineer the code". I say - in that case his parents are responsible for his actions. Regardless of who did it, the information was still obtained "improperly" and so deCSS is tainted. After all, it a minor robs a bank then whoever is considered legally responsible the crime was still committed. In this case, the information was obtained improperly.
3. "Those agreements aren't binding in Norway, where the algorithm was figured out". I say - okay, but as far as the US court is concerned he still made that agreement, and so the information was obtained improperly etc... This case is about restraining the transmission of this material in this country.
4. "Freedom of speech..." I say - Sorry, trade secrets supercede freedom of speech, as long as the information was obtained improperly. You may not like this, but it is the law.
5. "We are entitled to Fair Use of our purchases DVDs". I say - I do not disagree. If you can figure out how to play them without using improper means that is okay. Similarly you may make a copy, if you wish, for personal use. But
this case only pertains to deCSS and its derivatives, which were improperly obtained. [Whether the CCA may be acting unfairly by not supplying Linux decoders is another issue - an illegal Microsoft/DVDCCA pact would be rather hard to prove].
6. "It would be better for the world if..." This is not a legal argument.
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Hopefully someone can produce a better argument than the above. I'm not saying that I agree that the above constitutes a moral reading of the problem, but we are dealing with the law and morality and law have little in common. I think that the CCA will win the case, followed by a lot of flames on /., a fair number of flagrant breaches of the decision, some of which will be harshly punished, and finally a deCSS underground.
Sorry if I'm pessimistic.
-type2
There's been a lot of argument about how DeCCS is used to view, not copy, DVDs - and that a bit-by-bit copy can be achieved without it. Other people have already explained that it isn't that clearcut.
IANAL, but if I were the CCA I would present the following argument:
This algorithm is a trade secret. The algorithm was figured out by someone using the Xing decoder. They had clicked a box agreeing not to reverse engineer the algorithm when they installed it.
Hence the algorithm and deCSS source code is a trade secret which was obtained improperly. Therefore according to law, every copy or derivation of it is tainted and must be removed from the public. End of argument.
You must break that chain of reasoning somehow. Your arguments?
1. "He did not click the box to agree to that. We all know that programs can be installed with the EULA agreement stage bypassed, with a little hacking". I say - you must prove that this EULA was in fact bypassed in this case(of course you can't, there is no evidence around). Remember the Intel/AMD case, when AMD had to go to extreme lengths to _prove_ that they had figured out how intel's chips worked without reading the development documentation. Simiarly, the burden of proof is on you in this case. Since there is no evidence, you are stuck.
2. "He was a minor and so could not enter into a binding agreement not to reverse engineer the code". I say - in that case his parents are responsible for his actions. Regardless of who did it, the information was still obtained "improperly" and so deCSS is tainted. After all, it a minor robs a bank then whoever is considered legally responsible the crime was still committed. In this case, the information was obtained improperly.
3. "Those agreements aren't binding in Norway, where the algorithm was figured out". I say - okay, but as far as the US court is concerned he still made that agreement, and so the information was obtained improperly etc... This case is about restraining the transmission of this material in this country.
4. "Freedom of speech..." I say - Sorry, trade secrets supercede freedom of speech, as long as the information was obtained improperly. You may not like this, but it is the law.
5. "We are entitled to Fair Use of our purchases DVDs". I say - I do not disagree. If you can figure out how to play them without using improper means that is okay. Similarly you may make a copy, if you wish, for personal use. But
this case only pertains to deCSS and its derivatives, which were improperly obtained. [Whether the CCA may be acting unfairly by not supplying Linux decoders is another issue - an illegal Microsoft/DVDCCA pact would be rather hard to prove].
6. "It would be better for the world if..." This is not a legal argument.
---
Hopefully someone can produce a better argument than the above. I'm not saying that I agree that the above constitutes a moral reading of the problem, but we are dealing with the law and morality and law have little in common. I think that the CCA will win the case, followed by a lot of flames on
Sorry if I'm pessimistic.
-type2
