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2600 Magazine Drops DeCSS Appeal

By amike in Technology
Sat Jul 06, 2002 at 08:33:44 PM EST
Tags: Freedom (all tags)
Freedom

After two and a half years and much debate, 2600 Magazine, the self-proclaimed "Hacker's Quarterly," announced Wednesday that it will not ask the Supreme Court to review the decision of a federal court order prohibiting 2600 from publishing or linking to sites containing DeCSS, a computer program that decrypts the Content Scrambling System (CSS) found on DVDs. The decision ends a long legal battle with the MPAA over an article 2600 posted on their website in December 1999 containing the software and links to mirror sites. The case was one of the first to involve the Digital Millenium Copyright Act (DMCA), a 1998 law prohibiting the distribution, use, or possession of technology that circumvented technological copy-protection systems.


The decision was made by 2600 after consulting with legal experts about the possibility of a Supreme Court decision in their favor. Almost all of these experts voiced the opinion that the Court would not hear the case, and that even if it did, the Court would find for the MPAA, setting an undesirable legal precedent. Confronted with this, 2600 and its editor, Eric Corley -- better known as Emmanuel Goldstein -- decided not to waste the time and money.

Amidst the air of disappointment, however, the staff of the magazine is optimistic, and confident that this was the best course of action:

While it's tempting to think of this as a defeat, we must look at the good that has come out of it. People the world over know all about the DMCA and are committed to overturning it. The amount of education that has occurred in the last two and a half years is simply phenomenal. There are many other combatants now in the fight and we have never been more convinced that we will ultimately prevail.

The war has not ended. Only the frontlines have changed. We are convinced that when all is said and done, this will be seen as the best strategy.

The case started in 1998 when the MPAA sought (and was granted) a preliminary injunction prohibiting 2600 from posting DeCSS on their website. This led 2600 -- with the help of the Electronic Frontier Foundation (EFF), an online rights group -- to retain Marvin Garbus as their defense attorney. Mr. Garbus has defended many political dissidents, among them Anatoly Sakharov and Nelson Mandela. Also on 2600's legal team was Katherine Sullivan, the Dean of Stanford Law School

The district court trial, which showed MPAA president Jack Valenti's total lack of knowledge about anything to do with DVDs or the defendants, ended in August 2000 with Judge Lewis Kaplan finding for the MPAA, and a permanent injunction was put in place.

2600 appealed to the 2nd Circuit Court of Appeals on May 1st, 2001. On May 30th, 2001, the Circuit Court affirmed the District Court's decision.

Further details about the case, as well as most of the DeCSS legal documents, can be found on 2600's website. For more about the general fight to stop the DMCA and its brethren, see the EFF's website.

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Poll
Do you agree with 2600's decision?
o Yes. they were wrong from the start. 3%
o Yes. 2600 should retreat now to fight again another day. 71%
o No. the Supreme Court would correct the lower court's errors. 8%
o No. I wanted the Supreme Court to stop this DMCA whining. 10%
o No opinion. 4%
o Who's 2600? 1%

Votes: 89
Results | Other Polls

Related Links
o announced
o preliminar y injunction
o Electronic Frontier Foundation
o Marvin Garbus
o total lack of knowledge
o finding for the MPAA
o permanent injunction
o affirmed
o website
o website [2]
o Also by amike


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2600 Magazine Drops DeCSS Appeal | 15 comments (14 topical, 1 editorial, 0 hidden)
Supreme Court needs a better test case (5.00 / 3) (#2)
by FlipFlop on Sat Jul 06, 2002 at 01:28:06 PM EST

I could be mistaken about this, but I believe higher courts can only rule on issues that were brought up and argued before the district court. As this case progressed, a whole host of people chimed in offering perspectives that the district court never addressed. For example, a group of law professors, argued that congress did not have the power to pass the DMCA in the first place. The appeals court only addressed one aspect of that argument (an aspect that came up in the district court).

Limited to issues brought up in the district court, 2600's strongest argument was that the DMCA violates free speech when applied to software. The court shot that argument down saying the law only targets functionality, not expression. 2600 had a good case that code and functionality are inseparable, and to target one is to target both. But I do not want the Supreme Court ruling on the free speech protection of code without the benefit of other issues that have come up over the past couple years.

I think someone with a good reputation needs to develop a handy media processing tool (language analyzer, word search tool, something). They should design it with a plugin architecture to circumvent various DRM systems (one plugin to read DVDs, a plugin to process Adobe E-Books, another plugin to process real audio files, etc.). Then they should sue for the right to publish it.

AdTI - The think tank that didn't

A very strong case against the DMCA (none / 0) (#10)
by bouncing on Wed Jul 10, 2002 at 11:14:19 PM EST

Dmitry Sklyarov had an extremely strong case against the DMCA. That's why the government was so eager to plea bargain in his case. He never posted any exact code, he never even tried to copy something, rather, he was arrested after giving a speech in Las Vegas regarding the security problems with eBooks. His information was accurate, very useful for book publishers, and did not contain any specific instructions on how to do anything illegal.

His release is a mixed result. While on one hand, he personally will face no serious harm, one of the strongest cases against the DMCA was settled out of court.

[ Parent ]

It's still going (none / 0) (#14)
by Quila on Thu Jul 18, 2002 at 10:41:19 AM EST

The case against his company is still going over the same issues. This could be the case the EFF is looking at to take to the Supreme Court, considering it to be stronger. A quick look at some of the clients of Elcomsoft (FBI, etc.) will show their software has significant legitimate (in the eyes of the gov't) uses.

[ Parent ]
Popular defendant wouldn't go to the Supreme Court (none / 0) (#12)
by Robin Lionheart on Thu Jul 11, 2002 at 08:56:03 PM EST

That would be a fine think, if it worked. However, I don't think the MPAA, RIAA, &c. would take "someone with a good reputation" to the highest court over a program to make fair use of copyrighted material.

Perhaps it would go the way of Edward Felten v. RIAA. Felten asked the court to declare that he can publish his paper on cracking SDMI despite the RIAA's DMCA threat. The RIAA backed down from their legal threat and declared they're not going to sue, and the court dismissed the case, setting no legal precedent.

Even if they did pursue the lawsuit in a lower court, if the court found against them they might do what Corley is now doing: accept the lower court's judgement rather than have a higher court set a precedent they find unfavorable.

It seems to me the better the case is for free speech advocates, the less likely it would reach the level of the Supreme Court.

"First Amendment issues are always unpopular. That's why we need a First Amendment."
-- Floyd Abrams, lawyer


[ Parent ]

Fair decision... (3.66 / 3) (#3)
by dipierro on Sat Jul 06, 2002 at 01:30:39 PM EST

I've read the Second Circuit Appeals Court ruling and it seems to be a fair ruling. I do disagree with their rejection that "subsection 1201(c)(1), which provides that '[n]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title,' can be read to allow the circumvention of encryption technology protecting copyrighted material when the material will be put to 'fair uses' exempt from copyright liability," as well as their rejection that "fair use 'is rooted in and required by both the Copyright Clause and the First Amendment,'" but the fact of the matter is that they are correct in their assertion that they "need not explore the extent to which fair use might have constitutional protection, grounded on either the First Amendment or the Copyright Clause, because whatever validity a constitutional claim might have as to an application of the DMCA that impairs fair use of copyrighted materials, such matters are far beyond the scope of this lawsuit..."

But it's unlikely anyone is going to be sued or arrested for fair use, so this is only going to come up again one way. Someone has to ask a copyright holder for a license to circumvent a technological measure protecting their work for the purpose of fair use. Then the copyright holder has to deny that license. Then they have to ask the court for a declaratory judgment that they are not breaking the law. If that is denied, then maybe they have standing to sue over the constitutionality of the law, relying on the First Amendment and the Copyright Clause.

Hopefully by then the Supreme Court will have already ruled the CTEA unconstitutional, setting a precedent for striking down a law which exceeds the copyright clause. But while the CTEA lawsuit is probably a 50/50 bet, one against the DMCA is a long shot.

Remember, bad law does not mean unconstitutional law. While the fair use provisions might be narrowly constructed to permit circumvention for fair use, it's highly unlikely even that argument will be enough to overturn the DMCA. It seems that only congress has the power to do that.



Arrested for fair use (none / 0) (#11)
by bouncing on Wed Jul 10, 2002 at 11:18:28 PM EST

But it's unlikely anyone is going to be sued or arrested for fair use,
It's already happened, many many times. The historic case involving the VCR, where someone was sued, but the suit was dismissed by the Supreme Court. Then there is the case going before the courts regarding devices used to skip TV commercials.

Don't be so niave as to think that fair use will be around in five years. You're mistaken.

[ Parent ]

You're right (none / 0) (#15)
by Quila on Thu Jul 18, 2002 at 10:44:21 AM EST

One thing the Supreme Court hinted at in the Betamax case was that it was okay since people were just shifting the whole thing -- including commercials -- to a different time (the fact that you could fast forward didn't seem to be in the thinking). These players cut commercials, which could be very dangerous for any future ruling.

[ Parent ]
What Ryan and Jacob would say... (3.50 / 4) (#4)
by Thinkit on Sun Jul 07, 2002 at 01:45:09 AM EST

All IP laws have no basis in logic and are thus meaningless and uninteresting. Logic clearly states that nobody can own an idea, as two people can come up with the same thing (using their reason and intellect). The DMCA is a last gasp of a dying society...come join the new one.

How to live in an IP-free world (none / 0) (#13)
by samiam on Fri Jul 12, 2002 at 08:03:49 AM EST

Here is how you can live in an IP free world:
  • Get rid of your television set
  • Make sure that the only music you listen to comes from MP3s that the artist themselves are giving away.
  • Get rid of any and all books that you own, with the exception of GNU and other manuals released under a free documentation license.
  • Do not see any movies; they are copyrighted
  • Do not listen to the radio; radio content is copyrighted.
  • Do not read the newspaper; the content is copyrighted.
  • Do not go to any news related web sites where there is a copyright on the news articles in questions.
  • Do not use Windows, or any other OS or software which is released under a non-libre license.
This is the kind of world we would have without copyright laws.

The logic behing IP laws is really quite simple: If people do not pay for content, people will (by and large) no longer make content. The exceptions are few and far between; following the directions in the above list will give you an idea what such a world would be like.

- Sam

[ Parent ]

But DeCSS isn't agains DMCA... (none / 0) (#5)
by Kindaian on Sun Jul 07, 2002 at 06:32:14 PM EST

CSS isn't a copy protection system as it doesn't protect against copy.

So... why should it be illegal under a law that abridge copy protection only?

To my knowledge, CSS is a crypto system to avoid the DVD to PLAY. Nothing in that technology avoids or prevents the copy (to my knowledge that isn't possible either in dvd's or cd's).

So... recapitulating... what is this case all about, except to fill the pockets to some people on the expense of others liberties?

Cheers...


CSS is a copyRIGHT protection system (none / 0) (#6)
by FlipFlop on Sun Jul 07, 2002 at 09:26:12 PM EST

CSS "effectively controls access to a work". The law specifically states:

As used in this subsection -
  • (A) to ''circumvent a technological measure'' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
  • (B) a technological measure ''effectively controls access to a work'' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

DeCSS circumvents a technological measure that effectively controls access to a work. Section 1201 says nothing about copying. It is all about controlling the use of copyrighted material.

AdTI - The think tank that didn't
[ Parent ]

CSS and blank DVD's (none / 0) (#9)
by bouncing on Wed Jul 10, 2002 at 11:07:44 PM EST

The simple fact of the matter is, it would be easier to copy DVD's without CSS. For a variety of reasons.
  • I presume you are talking about directly copying a DVD, it would be true that you could copy the encoded version on to a blank DVD. But that's not entirely true. DVD blanks available to consumers are read-only in the section of the DVD that contains the CSS data. Therefor, you can only copy unencrypted DVDs into blanks using consumer equipment.
  • DVD drives are shipped with software to view the DVD, but not copy it. Therefor, the only way to copy it through computer software in a usable (unencrypted) form is to write your own alternatives to the software.
The courts would find that CSS makes it more difficult to copy a movie, and therefor, is copy protection. They would be correct.

Their folly is that they are trying to ban the tools used for commiting a criminal act, not the criminal act itself. It's like banning a Porsche because it can go over 75.

[ Parent ]

Why they ended the court battle (4.00 / 1) (#7)
by Nuke Skyjumper on Mon Jul 08, 2002 at 01:04:42 AM EST

If I were 2600's attorney, I wouldn't have taken this to the Supreme Court either. The current political attitude in this country makes it a very bad time to allow the courts to decide on the legality of the DMCA.

The name of the game right now is stopping terrorism. It's not hard to see how the Supreme Court might equate terrorism with some of the things the DMCA was meant to stop. "Hacking" is bad, and will not be tolerated in a country that's very fearful of rogue citizens (terrorists/hackers/etc).

Because of this, I agree that backing off will be seen as the best strategy in the future. We would have a much better chance of having the DMCA repealed during periods of peace and growth. And assuming that computers continue to become more widely used with more educated users, support for repealing the DMCA will only grow with time.


Hmmmm (none / 0) (#8)
by Happy Monkey on Tue Jul 09, 2002 at 06:41:24 PM EST

Perhaps my FP vote was misplaced. Is this the least-commented-on story ever?

Or did this post push it over the edge?
___
Length 17, Width 3
2600 Magazine Drops DeCSS Appeal | 15 comments (14 topical, 1 editorial, 0 hidden)
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