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[P]
Court once again muddles over key question in DMCA case

By FlipFlop in Technology
Sun Feb 22, 2004 at 11:57:50 PM EST
Tags: Freedom (all tags)
Freedom

"The anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) creates three new intellectual property rights that plainly fail to satisfy three constitutional requirements under Article I, Section 8, Clause 8."

That was the Copyright Law Professors' argument in 321 Studios v. MGM Studios. The professors presented this argument in two other cases, and both times, the court failed to fully address the issue. On February 19, Justice Susan Illston once again skimmed over the issue.


The professors suggest that the DVD Copy Control Association (DVDCCA) has been granted an exclusive right on Content Scrambling System (CSS) without meeting the constitutional requirements for that right.

The DMCA

  1. Grants the exclusive rights to control the development and distribution of technologies
  2. Grants the exclusive rights in perpetuity, and
  3. Prevents intellectual works from entering the public domain.

CSS is a technology for encrypting and decrypting material on a DVD. Ordinarily, if someone wishes to obtain a monopoly on their invention, they would describe the invention in detail and apply for a patent. If the invention is sufficiently novel, the patent office may grant a monopoly for as much as 20 years.

The constitution spells out the requirement for limited durations:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Courts have interpreted this clause to mean the authors and inventors must expand the public domain in return for their exclusive rights. In particular, the courts require that inventors disclose their discoveries, that inventions contribute substantially to the study of science, and that inventions and writings must enter the public domain once the rights expire.

Justice Illston simply ignored the requirements for disclosure and novelty.

The DMCA allows distributors to wrap public domain content in a protected shield. Illston starts her ruling by admitting that DVDs contain material that is not available anywhere else. She then goes on to say,

while purchasers of DVDs with material in the public domain unquestionably have the right to make use of this public domain material, they can simply access it from a non-CSS encrypted DVD or can choose to access and copy this public domain material in a non-digital form1.

She later quotes Judge Whyte,

While the DMCA may make certain fair uses more difficult for digital works of authorship published with use restrictions, fair use has not been eliminated

Fair use is what the public is entitled to when copyright is in effect. Once copyright expires, the public is entitled to full use!

She continues to quote Judge Whyte,

Nothing within the DMCA grants any rights to anyone in any public domain work. A pubic domain work remains in the public domain and any person may make use of the public domain work for any purpose.

If CSS does not have a patent, then it must be in the public domain, yet the DMCA prohibits me from making full use of CSS.

With the DMCA in force, we can expect to see car manufacturers using it to lock independent auto shops out of repairing cars. We can expect to see printer manufacturers using it to lock competitors out of selling ink cartridges. We can expect to see blind people without access to popular content. We can expect to see open source software marginalized as it cannot work with DMCA-protected content. And we can expect to see Microsoft using it as a club against OEMs, Retailers, Software manufacturers, and competitors.

1Apparently Justice Illston is not familiar with Macrovision2 which would prevent users from copying material from a DVD player's analog output. Naturally, following Illston's advice would require circumventing the very law she just unheld.
2For some odd reason 321 Studios admitted they could make analog copies of DVDs.

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Poll
I'm concerned about the DMCA because
o It give technology vendors too much power 33%
o It discriminates against non-commercial technologies 10%
o It infringes on my fair-use rights 40%
o Cause I want warez, darnit! 10%
o It doesn't bother me 1%
o I wholeheartedly support the DMCA 3%

Votes: 108
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Court once again muddles over key question in DMCA case | 86 comments (82 topical, 4 editorial, 3 hidden)
First amendment issues (2.60 / 5) (#1)
by FlipFlop on Sun Feb 22, 2004 at 07:12:46 AM EST

Aside from skimming over a key question, I also take issue with the court's dismissal of the first amendment claims.

321 Studios argued that their software was expression protected by the first amendment. The court admitted that source code, and even compiled code was expression with first amendment protection. However, the court concluded that congress was banning functionality, not content. The judge quoted the Corely decision (she used lots of quotes) comparing CSS to a skeleton key with an emblem on it.

Just because a skeleton key has protected speech printed on it, doesn't mean prisoners are entitled to possess it. What the court failed to address was the fact that an emblem can be printed anywhere, while software is functional no matter what language or format you put it in. To take aim at software functionality is to take aim at the expression itself.

If the court were to acknowledge this point, they would have to use strict scrutiny which would reverse the court's ruling on all the first amendment arguments.

AdTI - The think tank that didn't

I like how... (none / 0) (#56)
by Elendale on Tue Feb 24, 2004 at 05:56:42 PM EST

I like how that example compares the public with prisoners.
---

When free speech is outlawed, only criminals will complain.


[ Parent ]
DMCA enacted under commerce clause (2.66 / 6) (#2)
by FlipFlop on Sun Feb 22, 2004 at 07:29:13 AM EST

The court said it was very clear that the DMCA was enacted under the commerce clause. The intellectual rights clause is important because it is a restriction on congress's power. Congress can not use the commerce clause or the elastic clause to do something that the intellectual rights clause specifically prohibits.

Since the DMCA was enacted under the commerce clause, open source developers may be immune to DMCA claims, as long as they do not seek any compensation for their work. However, the explanation quoted in the ruling (p21) could leave someone a bit nervous:

Trafficking in or the marketing of circumvention devices "for gain," as proscribed by Sections 1201(b) and 1204, has a direct effect on interstate commerce. To the extent that circumvention devices enable wrongdoers to engage in on-line piracy by unlawfully copying and distributing copyrighted works of authorship, the sale of such devices has a direct effect on suppressing the market for legitimate copies of the works. Accordingly, there is a rational basis for concluding that the regulated activity sufficiently affects interstate commerce to establish that Congress had authority under the Commerce Clause to enact the legislation.

As always, IANAL.

AdTI - The think tank that didn't

Subject: (1.25 / 12) (#4)
by DJ Google on Sun Feb 22, 2004 at 07:39:51 AM EST

As always, IANAL.

If you aren't a lawyer then why don't you just STFU? What is the point of these "IANAL" people writing articles which contain bucket-loads of inaccuracies about the Law? It's like a troll, only nobody's laughing.

--
Join me on irc.slashnet.org #Kuro5hin.org - the official Kuro5hin IRC channel.
[ Parent ]

Har. (none / 2) (#14)
by bakuretsu on Sun Feb 22, 2004 at 12:37:07 PM EST

Because everyone has a right to represent themselves, and even if lawyers created a completely different language so that nobody else could understand tham (we're halfway there now), people would still learn it to make sure they weren't being fucked.

I would, anyway.

-- Airborne
    aka Bakuretsu
    The Bailiwick -- DESIGNHUB 2004
[ Parent ]

And shut down Groklaw? (none / 0) (#81)
by pin0cchio on Sat Feb 28, 2004 at 09:50:02 PM EST

Common law recognizes a difference between legal research and legal advice. On the Internet, disclaimers such as "I am not a lawyer" and "you are not my client" express this distinction. Only a licensed attorney can give legal advice, but a paralegal can give legal research, and so can anybody else who can write coherently and cite case law. Do you have something against Groklaw.net, run by a paralegal? If you have a problem with an IANAL post, please post your own research to refute it rather than ad-homming the armchair para who posted it.

And oh yeah, I am not a lawyer either.


lj65
[ Parent ]
Exactly! Let's get rid of independent courts! (1.00 / 13) (#3)
by neoreactionary on Sun Feb 22, 2004 at 07:37:30 AM EST

Why not just have a vote among self-righteous techno-fascists to decide legal cases?

Great idea! (none / 3) (#12)
by godix on Sun Feb 22, 2004 at 12:04:21 PM EST

I for one would love to see slashdot hordes decending on MS to try and imprison Bill Gates for crimes against humanity (or at least against linux). The news footage would be the funniest piece of footage since Gates had win98 blue screen on him.

It's dawned on me that Zero Tolerance only seems to mean putting extra police in poor, run-down areas, and not in the Stock Exchange.
- Terry Pratchett
[ Parent ]
Antitrust enforcement (none / 0) (#80)
by pin0cchio on Sat Feb 28, 2004 at 09:41:13 PM EST

I for one would love to see slashdot hordes decending on MS to try and imprison Bill Gates for crimes against humanity (or at least against linux).

The "crimes against Linux" are the well-documented convictions in the U.S. v. Microsoft antitrust case. Thus, the Slashdot hordes could almost make it look legit by passing out T-shirts marked "Antitrust Enforcement Force".


lj65
[ Parent ]
When reading what Justice Susan Illston did... (1.62 / 8) (#5)
by NaCh0 on Sun Feb 22, 2004 at 08:21:23 AM EST

I'm sure that I'm not the first person who thought "dumb bitch."

--
K5: Your daily dose of socialism.
Isn't this what the DMCA is for though? (2.25 / 4) (#6)
by squigly on Sun Feb 22, 2004 at 09:43:36 AM EST

The point of the DMCA is to prevent people from doing this.  Unauthorised copying is considered by the people who drafted the law to be more harmful than restricting people's right to make backups.  While it does have some legitimate use, 321 studio's software allows unrestricted copying.

Although I disagree with the attitudes behind the law, and feel that a certain amount of copying should be allowed, the judges interpretation of the law would appear to be perfectly correct, and in keeping with the spirit of the law.

As for fair use - While the public does have that right, I don't believe there is anything in copyright law that forces content providers to be sure that we have that right.

interpretation of the law (none / 1) (#8)
by Morosoph on Sun Feb 22, 2004 at 10:45:02 AM EST

Isn't the issue, though. Is the law constitutional?

[ Parent ]
Look at Eldred v. Ashcroft (none / 1) (#79)
by pin0cchio on Sat Feb 28, 2004 at 09:38:36 PM EST

Given the Supreme Court's ever-broadening interpretation of the scope of Congress's enumerated powers, as evidenced in its opinion in Eldred v. Ashcroft upholding repeated extension of the term of a copyright, I'd claim that 17 USC 1201 and pretty much anything else Congress could write into 17 USC would be considered constitutional.


lj65
[ Parent ]
I can almost smell it now... (none / 0) (#83)
by Morosoph on Sun Feb 29, 2004 at 04:35:16 PM EST

I can see this kind of reasoning in progress: "The constitution, rigidly interpretted, isn't flexible enough to account for changes in society."

The constitution is coming to an end. In the above sentence, "society" actually means "government".

[ Parent ]

wtf? (none / 0) (#43)
by stationaryobserver on Mon Feb 23, 2004 at 04:40:39 PM EST

The judge is speaking out of his/her ass. It doesn't make sense to me why I should'nt be able to make a copy of a DVD. She plainly says I can do that with some other media, why not the DVD? Because the DMCA restricts that? The logic that follows is that there is something wrong with the DMCA. The judge just refuses to look at that possibility, either because of ignorance or stupidity, or because they were paid off by some organization. CD-R/RW's are not illegal. Toast isn't illegal. Tape players aren't illegal, the expensive CD recorder/duplicator for your stereo isn't illegal. WHY IS BURNING A DVD ILLEGAL.

I don't care what 1 law out of 100 says when the other 99 say the same action is legal with a different type of fucking plastic. I will continue to copy my dvd's with legal or illegal tools. I really don't care. 3-2-1 should change the name and leak their source.

[ Parent ]

This is not what the law says (none / 0) (#52)
by squigly on Tue Feb 24, 2004 at 11:11:26 AM EST

It doesn't make sense to me why I should'nt be able to make a copy of a DVD.

Well, you can.  you're just not allowed to breach the copy protection to do it.  This may make it impossible to do so, but you have the legal right to make a copy through some other means, e.g. a betamax video recorder, or via any other means, or real time screen capture.

Likewise, if there's a copy proection mechanism on a CD, or an ebook, you're not allowed to circumvent it.

Okay, the DMCA is a bad law, for many reasons, but the interpretation of the law is perfectly valid.

[ Parent ]

Nothing digital about the DMCA (none / 0) (#78)
by pin0cchio on Sat Feb 28, 2004 at 09:36:00 PM EST

you have the legal right to make a copy through some other means, e.g. a betamax video recorder

No. The DMCA requires that all VCRs sold in the United States must recognize Macrovision and respond to it by making the recorded copy unusable. Emigrating from the United States is cost prohibitive.

or real time screen capture.

You mean camcording a performance of an audiovisual work? There's legislation pending before the U.S. Congress to ban even that.


lj65
[ Parent ]
The DMCA doesn't ban everything (none / 0) (#82)
by squigly on Sun Feb 29, 2004 at 03:48:56 AM EST

No. The DMCA requires that all VCRs sold in the United States must recognize Macrovision and respond to it by making the recorded copy unusable.

This doesn't apply to Betamax at the moment.    They didn't want to outlaw sales of second hand video recorders.  If you already have such a device, you are allowed to keep it.

You mean camcording a performance of an audiovisual work?

No.  I mean writing a driver that will output to memory, and storing from memory to hard disk.

There's legislation pending before the U.S. Congress to ban even that.

But that's not the DMCA, nor is it a law.

[ Parent ]

Secure Video Path (none / 0) (#86)
by pin0cchio on Thu May 20, 2004 at 02:24:49 PM EST

I mean writing a driver that will output to memory, and storing from memory to hard disk.

Microsoft has already introduced a Secure Audio Path that refuses to run an unsigned sound driver such as what you suggest. What makes you think Microsoft won't do the same thing with video drivers?


lj65
[ Parent ]
Legal protection (none / 0) (#85)
by BillyBlaze on Sat Mar 06, 2004 at 02:52:42 PM EST

I agree that nothing forces content providers to make it easy for individuals to exercise fair use. But it's horrible that they give legal protection to the industry's otherwise unfeasible attemps to limit that. That's the real problem.

[ Parent ]
Patent or public domain? (none / 2) (#7)
by yamla on Sun Feb 22, 2004 at 10:34:41 AM EST

If CSS does not have a patent, then it must be in the public domain

I do not see how this follows.  I've written computer software, for example, that is not patented.  It is instead protected by copyright laws.  Now granted copyright (at least in my country) only protects the specific expression of an idea rather than the underlying algorithms.  I just don't see how you can claim if something is not patented, it is public domain.  What about copyright, what about trade secrets, what about licensing, etc.?

He's refering to an invention (none / 0) (#9)
by curien on Sun Feb 22, 2004 at 11:12:58 AM EST

and copyrights don't apply to inventions. However, you correctly pointed out trade secrets, which do. In fact, the DVD-CCA's stance used to be (not sure if it still is) that CSS is in fact a trade secret. I'm not really sure if that would stand up in court anymore (as a trade secret must be... well... secret).

--
All God's critters got a place in the choir
Some sing low, some sing higher
[ Parent ]
Difference between copyright and this (3.00 / 4) (#34)
by dachshund on Mon Feb 23, 2004 at 02:11:55 AM EST

What about copyright, what about trade secrets, what about licensing, etc.?

You can copyright your source code in order to prevent other people from using it. What you can't do with copyright is prevent someone else from writing their own source code from scratch, by observing how your program works.

In order to do that, you'd need to patent your work as an "invention"; this would allow you to stop anyone from writing a program that does something similar. The check on this power is that you have to clearly describe how your invention works in a published application, and your patent expires after 20 years. Your idea also has to be "original".

Trade secrets also don't give you protection. If someone figures out your trade secret legally (ie, without stealing it from you), they're allowed to use it, and it's too bad for you.

The authors of CSS did not apply for a patent on CSS. They never published how it works. They don't plan to give it to the public domain after 20 years. They never proved that it was an original invention (it's not, really.) But they want to claim exclusive rights not only on the source code they wrote, but on the source code anyone else writes-- even if that person does a clean-room reverse engineering.

You'll see this kind of misuse of the DMCA everywhere. Many software companies will add weak "encryption" to various portions of their product as a means to prevent other companies from competing/adding compatibility. Printer cartridge manufacturers, unable to patent their cartridge designs, misuse the DMCA to gain a competitive advantage against third party ink manufacturers. And so on. By creating this capability, the DMCA has created a sort of "unofficial" exclusive IP right that doesn't comply with any of the restrictions in the copyright clause of the Constitution.

[ Parent ]

not a misuse (none / 0) (#41)
by phred on Mon Feb 23, 2004 at 01:51:09 PM EST

of the DMCA from what I understand, I believe that this is exactly how the DMCA is intended to work, protect content through technical means and outlaw technical circumvention. Thats why folks are upset about the DMCA, it directly challenges the concept of fair use.

[ Parent ]
Abusable (none / 0) (#47)
by dachshund on Mon Feb 23, 2004 at 11:05:04 PM EST

I believe that this is exactly how the DMCA is intended to work, protect content through technical means and outlaw technical circumvention

The DMCA was intended to protect copyrightable content from "piracy". It was definitely not intended to protect printer companies from third party competition-- where's the "content" here? It was not intended to prevent interoperability between different products. In these cases, corporations are misusing the law solely because it grants them a technological exclusive-use right that's better and cheaper than a patent. They're not using this exclusive right to protect any sort of content, they're just using it. Sort of like taking the orange peel without the orange.

Certainly the DMCA is a bad law even if it doesn't allow for these abuses. But what makes it even worse (and legally indefensible) is that the vague framing means it can be abused for purposes that Congress clearly did not intend-- purposes that incidentally violate the restrictions of the Copyright Clause of the Constitution.

[ Parent ]

in the case of printer cartridges (none / 0) (#51)
by phred on Tue Feb 24, 2004 at 08:40:27 AM EST

I guess its a bonus for the manufacturers. The copyable content is of course the printer cartridges.

[ Parent ]
And I think we all agree... (none / 0) (#74)
by eruonna on Thu Feb 26, 2004 at 05:12:28 PM EST

...that printer cartridges are a notable form of expression.

[ Parent ]
copy protection (2.40 / 5) (#11)
by cronian on Sun Feb 22, 2004 at 11:19:46 AM EST

If CSS were illegal because it didn't allow public domain usage 'after' the copyright expires, is software copy-protection illegal? I think at one time there was some software that required an additional hardware device just so it could run. Is that legal because you could legally crack the software 'after' the copyright expires?

We perfect it; Congress kills it; They make it; We Import it; It must be anti-Americanism
CSS isn't illegal (none / 0) (#19)
by curien on Sun Feb 22, 2004 at 03:20:17 PM EST

That was never the question. The question is whether a) cracking CSS is illegal and b) trafficking in a utility which allows one to crack CSS is illegal.

Frankly, I think CSS encryption of DVDs should be illegal under RICO, but that's a totally different issue.

--
All God's critters got a place in the choir
Some sing low, some sing higher
[ Parent ]

Exceptions (none / 0) (#36)
by Zork the Almighty on Mon Feb 23, 2004 at 04:35:08 AM EST

Exceptions were recently added to the DMCA which address these concerns. I even dug up a link

[ Parent ]
-1, yet more anti-IP gibberish (1.05 / 20) (#13)
by Hide The Hamster on Sun Feb 22, 2004 at 12:22:12 PM EST




Free spirits are a liability.

August 8, 2004: "it certainly is" and I had engaged in a homosexual tryst.

Sorry for the double post... (3.00 / 6) (#17)
by kmcrober on Sun Feb 22, 2004 at 03:08:16 PM EST

Put it in the wrong category.

Neither side in this case is probably terribly worked up over this.  This is only a district court opinion, the lowest (for these purposes) federal venue.  The appeal will go now to a small group of 9th Circuit judges, which is probably where the parties have always expected to do the main work in the case, for a few reasons.

First, district courts don't have much influence.  Their opinions set precedent only in the same district, and sometimes not even there.  Circuit courts bind the entire circuit (here, the whole west coast, Alaska, Hawaii, and I think Nevada and Utah) and are influential elsewhere.

Second, district judges are notorious for making bad decisions in complex cases.  District courts have very heavy dockets, especially on the federal level where the same judges hear civil and criminal matters.  Circuit courts hear only appellate questions, and only the ones they decide to hear, so they have more time and resources to commit to understanding a case.  They also don't sit alone; there will be at least three judges hearing the appeal, and that helps hash out complexities.  Probably.  In practice, the judges won't discuss the case, but rather send drafts of briefs and opinions to each other through their clerks.  Still better than doing it alone, I think.

So neither party probably cares an enormous amount about the district opinion; they're shooting for a circuit decision, and maybe an eventual writ of certiorari to the Supreme Court.

There are some problems, of course.  The 9th Circuit isn't as overloaded as some others, but it's still very busy; they may very well not take the appeal.  That's not critical, since as I said, district courts have limited powers of precedent - although the matter will still be binding on the parties here.  The plaintiffs, for example, might be precluded from bringing the same suit against the same people elsewhere in the country.

Another problem is that circuit judges tend to be older and more hidebound than district judges; they might be even less inclined to really grasp the technical aspects of a DMCA claim.  That's not as big a problem in the 9th Circuit; Rush Limbaugh's hyperventilating hyperbole aside, it's got some of the best judges in the country.  Kozinski, for example, is a judicial superstar, and while there's no guarantee that someone of his caliber would hear the case, there are lots of good judges on the 9th.  

Finally, there's one other consideration.  Some lawyers believe that when you're shooting for an appeal from the get-go, you want a bad district opinion.  It makes it harder for the circuit to uphold it, and makes them lean towards remanding it at least.  For myself, I'm not so sure... the circuit can always just decide not to hear it or dump it on a technicality.  Also, circuit courts can't admit new evidence or re-hear questions of fact, so how the district judge managed the trial and what evidence she admitted could be much more important than the opinion she wrote.

Anyway, long story short, this is not a disaster.  Wait a year or so, see what happens on appeal.  For now, it's good to understand the issue, and chide judges who fail to think things through, but copyright liberalization has lost a minor battle, not the war.

Blind people. (2.00 / 11) (#20)
by MisterPorridge on Sun Feb 22, 2004 at 03:22:27 PM EST

We can expect to see blind people without access to popular content.

Yeah, but they won't see us! Heh heh heh, heh heh, heh......

......I'm a bastard.

Mr. Porridge

Wow. That's nutty. (2.85 / 7) (#21)
by Kasreyn on Sun Feb 22, 2004 at 04:36:20 PM EST

they can simply access it from a non-CSS encrypted DVD or can choose to access and copy this public domain material in a non-digital form1.

Correct me if I'm wrong, but did a district judge just now publically admit that the only way for the public to exercise its fair-use rights is to break the law? Breaking the law = "access it from a non-CSS encrypted DVD" or "access and copy this public domain material". If a DVD is CSS'd, the industry does not make any non-CSS'd DVD's of it, though you might be able to find a VHS. And copying in a non-digital fashion doesn't, AFAIK, exempt you from the legal prohibitions against any and all copying. Is it just me, or did Judge Illston only give the DMCA and related case histories a quick once-over?...

Btw, from the pdf: "digital versatile disc"??? I always assumed that it stood for "digital VIDEO disc". Did someone get it wrong in the paper, or was that acronym already in use when DVD's were invented? That's startling.

Also by the mental wonder judge:

"A pubic domain work remains in the public domain and any person may make use of the public domain work for any purpose."

Good thing for the media industry that they've managed to push copyright (or was it trademark?) extensions back to 95 years! Walt's been dead for almost 40 years and I *still* can't legally make and sell a porn cartoon of Mickey doing Goofy and Pluto in a threesome? Something's WRONG with that!

I think it's time the American public started finding some judges who realize that copyright, trademark, and patent are a kindness, granted to the inventors by the American People in the hopes that it will inspire them to do more good work, rather than an ancient entitlement allowing them to keep collecting a check without having to think of anything new.


-Kasreyn


"Extenuating circumstance to be mentioned on Judgement Day:
We never asked to be born in the first place."

R.I.P. Kurt. You will be missed.
Digital versatile disc (none / 2) (#26)
by squigly on Sun Feb 22, 2004 at 06:46:04 PM EST

Officially it's "digital versatile disc".  It started of as digital video disc, but when they realised that it would also be used for other purposes such as computer data and audio, they changed it while keeping the acronym.

[ Parent ]
Court considers fair-use very limited (none / 0) (#27)
by FlipFlop on Sun Feb 22, 2004 at 07:40:00 PM EST

Correct me if I'm wrong, but did a district judge just now publically admit that the only way for the public to exercise its fair-use rights is to break the law?

From a constitutional perspective, fair-use is a means of balancing copyright with the first amendment. As far as the court is concerned, direct copying is not necessary for fair use. As long as you have the ability to scribble the details on a piece of paper, or create your own movie with the same copyrighted expression, fair use is still intact. From page 19 of the ruling:

Fair use is still possible under the DMCA, although such copying will not be as easy, as exact, or as digitally manipulable as plaintiff desires. Furthermore, as both Corley and 321 itself stated, users can copy DVDs, including any of the material on them that is unavailable elsewhere, by non-digital means.

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

You're wrong. (none / 1) (#28)
by qpt on Sun Feb 22, 2004 at 08:21:02 PM EST

Correct me if I'm wrong, but did a district judge just now publically (sic) admit that the only way for the public to exercise its fair-use rights is to break the law?
The DMCA prohibits circumvention of certain classes of access controls, so it is illegal to use software to bypass CSS protection on a DVD. However, if the content on the encrypted disk is in the public domain, there is no legal reason that a person cannot simply acquire the content on an unencrypted medium and thereby exercise one's fair-use rights. The latter is what the judge was suggesting.

Keep in mind that copyright protection applies to a work in any medium and is subject to fair-use restrictions and eventual expiration, while the DMCA protects a particular access-controlled copy of a work and is not subject to expiration.

Domine Deus, creator coeli et terrae respice humilitatem nostram.
[ Parent ]

public domain (none / 0) (#29)
by horny smurf on Sun Feb 22, 2004 at 09:33:36 PM EST

What if "Finding Nemo" is released ONLY on CSS DVD? In 70 years, when the copyright expires, the movie will be in the public domain, how will you legally acquire a non-protected copy?

[ Parent ]
Maybe it won't be possible (none / 0) (#30)
by qpt on Sun Feb 22, 2004 at 10:25:26 PM EST

To legally acquire a non-protected copy. I can see how that might be undesirable to certain people, but I don't see a legal problem.

Domine Deus, creator coeli et terrae respice humilitatem nostram.
[ Parent ]

The Legal Problem (none / 0) (#33)
by RadiantMatrix on Mon Feb 23, 2004 at 01:47:05 AM EST

You say "maybe it won't be possible to legally acquire a non-protected copy" of public-domain material (it's public domain when the copyright expires).

The legal problem here is that CSS is protecting a public-domain work, there is no other way to access that work, but circumventing CSS to access it would still be illegal.  That effectively grants the content creator a permanent monopoly on the work.

----------
I don't like spam - Parent ]

Breaks The Bargain (none / 1) (#45)
by snatmandu on Mon Feb 23, 2004 at 06:32:27 PM EST

The Problem is that this breaks the copyright bargain that is struck.  The reason We The People extend copyright protection to creators is as an incentive to publish.  The expectation is that at the end of the protection period, the work becomes part of the commons (the public domain).  

The DMCA creates a situation where I can publish something in a copy-protected format and still receive copyright protection.  When my copyright runs out, it's still illegal to copy my work, because you'd have to circumvent my copy protection scheme.

So the author gets their limited monopoly, and the public gets jack squat.  Me the Person says no thanks, this deal stinks.  And I say it to my representatives in the (naive) hope that they'll not be blinded by $$ from Disney

[ Parent ]

Only the first rip is illegal. (none / 0) (#53)
by ninja rmg on Tue Feb 24, 2004 at 02:37:25 PM EST

As soon as someone has illegally circumvented the copy protection on a work in the public domain, there are then copies available that you can legally copy yourself. On the off chance that, for example, the Finding Nemo copyright ever expires (unlikely), it will undoubtedly be available in a non-copy protected form (much as it is now).

Simply put, your scenario is nonsensical.



[ Parent ]

So they have to make an example... (none / 0) (#55)
by Elendale on Tue Feb 24, 2004 at 05:48:51 PM EST

Here's a scenario:

Let's say big hit X is released only on CSS DVDs and other super-copy-protected works (and there's a number of legal and financial incentives to do that at this point in time). A hundred bazillion years into the future (when the copyright on former big hit X finally expires) someone breaks copy protection and releases it into the public domain. Then the people who own all the copy protection sue the person who breaks the copy for a gazillion dollars (the current fee, adjusted for inflation) and generally go out of their way to (legally) ruin said person's life. Note that the second part does not necessarily hinge on how the lawsuit goes unless the legal tools the copyright holders have are removed somehow. How many more people do you think will make such copies?

Such a scenario is highly unlikely (Copyrights expiring? HAH!) but that doesn't make it any less stupid.


---

When free speech is outlawed, only criminals will complain.


[ Parent ]
The same number of people who make the copies now (none / 0) (#57)
by ninja rmg on Tue Feb 24, 2004 at 06:06:53 PM EST

Will make the copies in the future. There will always be script kiddies with enough disregard for the law to crack encryptions and illegally distribute digital content. If those kiddies are smart about it, they won't get caught. Ultimately though, if the public good is served by moving the works properly into the public domain and the law and consumers are served by a bazillion years of prosperous production of media without violation of copy protection, then a few jailed hackers are an acceptable sacrifice



[ Parent ]
That doesn't really address the point... (none / 0) (#59)
by Elendale on Tue Feb 24, 2004 at 07:00:09 PM EST

Every "legal" copy would have to come from an illegal source.
As a further point: how much do you think it would take to make owning an illegally decrypted piece of media a crime?
---

When free speech is outlawed, only criminals will complain.


[ Parent ]
I think that would be impossible. (none / 0) (#60)
by ninja rmg on Tue Feb 24, 2004 at 07:25:02 PM EST

Since there is no way to be sure where the piece of media originally came from after it has been copied, I don't think such a thing could ever become a crime.

On your "point" about the source of my copies, I'm not sure why you care. If the copy you own is legal, then you are in the clear. Now if you happen to be one of the criminals who rips them, fine, but criminals are well known for their objections to various laws and statutes. In fact, that probably accounts for their conduct in the first place.



[ Parent ]

Sure there would! (none / 0) (#62)
by Elendale on Tue Feb 24, 2004 at 09:23:03 PM EST

Because only the people who had legal access could legally distribute the works, and the legal access would only be given to the former copyright holders.

So it's "I own the copyright, i distribute only copy protected copies which are illegal to circumvent." and then "My copyrights run out, but i'm still the only one who legally circumvents the copy protection so i still only release copy protected versions."

Now at this point, it seems like the right thing to do is "If you release a copy protected version of some media you have to release the public domain stuff unprotected" law or exception or what have you but as i understand it that isn't the way it works currently.

Now assuming the above, any unprotected works would necessarily come from an illegally decrypted copy as there aren't any unprotected versions available. Thus it can be inferred that if you have an unprotected copy of the work it came from an illegally decrypted source.

Now of course, you're right that this is crazy talk. However, just because it's crazy doesn't mean such a situation is impossible.


---

When free speech is outlawed, only criminals will complain.


[ Parent ]
They have no way to be sure (none / 0) (#63)
by ninja rmg on Tue Feb 24, 2004 at 09:29:49 PM EST

That no other copies were made. For example, a worker at one of their manufacturers' could make a copy on a regular VCD or some such without encryption. After the copyright and the statute of limitations elapses, that becomes a perfectly legal, unprotected copy. It is unlikely that a company would be able to prove that such a thing never happened. Since "crime" requires conviction which requires "proof beyond a reasonable doubt," the sort of law you are talking about is unpracticable and would be recognized as such.



[ Parent ]
No, because ALL the copies are protected... (none / 0) (#64)
by Elendale on Tue Feb 24, 2004 at 10:23:37 PM EST

The problem with that is there's no reason for the employer to have any unprotected copies (the person who "owns" the stuff can legally bypass the protection) at all. They all wouldn't be CSS protected, of course, but if i were such a former-copyright holder i'd be super-careful to make sure that the only way to make a copy is to first bypass the copy protection.
---

When free speech is outlawed, only criminals will complain.


[ Parent ]
Maybe breaking CSS would become legal. (none / 0) (#70)
by squigly on Thu Feb 26, 2004 at 04:01:29 AM EST

The DMCA has wording to the effect of any device that is intended primarily to be used for copying protected copyright protected works is illegal.  If it could be demonstrated that a substantial portion of DVDs on the market were not protected works, then the software would have a clear legitimate use.

[ Parent ]
ty :-) -nt (none / 0) (#31)
by Kasreyn on Sun Feb 22, 2004 at 10:34:17 PM EST

nt
"Extenuating circumstance to be mentioned on Judgement Day:
We never asked to be born in the first place."

R.I.P. Kurt. You will be missed.
[ Parent ]
Unencrypted medium wtf? (none / 0) (#42)
by stationaryobserver on Mon Feb 23, 2004 at 04:30:48 PM EST

What unencrypted medium would that be?

This is like telling me I can make a backup of the CD I just bought, *BUT*, you have to record it off the radio. If you're going to say 'use a VHS', then what happens when they stop producing VHS? What happens when there are no VHS available? Where can I get this VHS to make a copy of, do I have to buy two copies of every movie? In doing so doesn't it make it completely retarded to make a backup? I've already paid for the movie twice.

The DMCA is bullshit, and I will continue to rip my dvd's. If they continue to piss me off, I will start seeding my collection via bittorrent from HavenCo servers. :D.


[ Parent ]

Made perfect sense to me... (none / 1) (#32)
by QuantumG on Mon Feb 23, 2004 at 12:41:20 AM EST

Bach's concerto number 5 is in the public domain, someone putting it on a DVD does not prevent me from obtaining and making a copy of it because it is available in a form that is not protected by CSS.

Gun fire is the sound of freedom.
[ Parent ]
okay... (none / 0) (#67)
by Danse on Thu Feb 26, 2004 at 12:31:01 AM EST

And when a movie that has only been released in CSS-encrypted DVD or Macrovision-encrypted VHS formats finally becomes public domain, how do you obtain a copy without cracking the Macrovision or CSS encryption, and thus violating the DMCA?




An honest debate between Bush and Kerry
[ Parent ]
You don't (none / 1) (#71)
by squigly on Thu Feb 26, 2004 at 04:03:34 AM EST

But you have the right to if you can.  You also have the right to use the characters, or to make a direct copy using exactly the same script, and character designs, or top produce a derived work, or to adapt it for radio, or to write a novelisation.

[ Parent ]
sigh (none / 0) (#72)
by Danse on Thu Feb 26, 2004 at 01:03:43 PM EST

If the work becomes inaccessible, then it isn't really in the public domain. That's the point of having a copyright expire. If we still aren't legally allowed to gain access to the work because of its encryption, then that is something that the DMCA has taken away from us. Now even when works fall into the public domain, we still can't access them. That would seem to me to be a violation of the Constitution.




An honest debate between Bush and Kerry
[ Parent ]
It's a stretch (none / 1) (#73)
by squigly on Thu Feb 26, 2004 at 03:26:46 PM EST

I'd say it's a bit of a stretch to say this is a violation of the constitution.  

Let's suppose a movie is on film instead.  I might have a 35mm film - video unit.  So, I decide I want to get a high quality copy of Metropolis.  I find that only the original publisher has a copy of the full length version.  He refuses any request to access it.  Are my constitutional rights violated?  Certainly, it's unfair of him to hoard it, but he's under no legal obligation to allow me access to it.

Besides, the law may change when there are CSS encoded DVDs in the public domain.  Perhaps when they are, it will be decided that DVD copiers do have substantial non-infringing use.  At the moment though, they do not.  It's hard to argue that anyone would be buying a piece of software with the intention of using it in a few decades time.

[ Parent ]

no.. (none / 0) (#75)
by Danse on Thu Feb 26, 2004 at 07:13:54 PM EST

I might have a 35mm film - video unit. So, I decide I want to get a high quality copy of Metropolis. I find that only the original publisher has a copy of the full length version. He refuses any request to access it. Are my constitutional rights violated?

That's not the same. In my example (which is the norm for movies released in the last few years), all the copies are encrypted. While it wouldn't actually be illegal to decrypt them once the copyright has expired (because then the encryption would no longer "effectively control access to a copyrighted work", it would still be illegal for anyone to distribute a tool to allow you to decrypt them, so unless you're a rather skilled programmer, you're completely SOL. Maybe the law will change in the future, but the point is that it's just as wrong now as it will be when the DVDs start falling into the public domain (assuming that ever happens, which is, unfortunately, a rather shaky assumption).




An honest debate between Bush and Kerry
[ Parent ]
Fair Use is a Defense, not a Right (none / 1) (#46)
by Sloppy on Mon Feb 23, 2004 at 06:46:13 PM EST

Correct me if I'm wrong, but did a district judge just now publically admit that the only way for the public to exercise its fair-use rights is to break the law?
Keep in mind that "Fair use rights" is a concept that only exists in common sense. In the text of the law, there is no such thing. Fair use is a defense against claims of copyright infringement, and not referred to as a right.

This is, of course, completely contrary to public perception and what has been taken for granted, for so long. No wonder there's so much conflict.
"RSA, 2048, seeks sexy young entropic lover, for several clock cycles of prime passion..."
[ Parent ]

Fair use is part of the First Amendment. (none / 2) (#50)
by jms on Tue Feb 24, 2004 at 12:38:51 AM EST

Fair use did not come out of thin air.  Fair use was invented in order to save the Copyright clause from the effects of the First Amendment.

The Constitution allows for exclusive rights -- specifically the right to exclude others from repeating and building upon one's speech. This is a restriction on the freedom of speech.  The First Amendment prohibits laws that restrict the freedom of speech.  By definition, a Constitutional amendment supercedes and strikes out any previous contradictory text in the Constitution.  Thus, under a strict reading, the First Amendment appeared to abolish copyright.

The Fair Use doctrine was developed in order to allow Copyright to survive in an uncomfortable truce with the First Amendment.  The logic behind the compromise is the theory that when a work is copyrighted and published, and is available to the public, then the public is not harmed by a prohibition on other people making direct copies of that work, because they can still buy it from the original publisher.  If "Gone With The Wind" is available everywhere in bookstores, then the public is minimally harmed by a prohibition on my printing and selling my own copies, because they can go to the bookstore and buy it from the publisher.

If I were to publish a pamphlet containing all of the choice quotes from "Gone With The Wind", that would probably be considered copyright infringement, because I didn't add anything to the work.  On the other hand, if I wrote a book analyzing and criticizing "Gone With The Wind", and included the exact same quotes in the context of analysis and criticism, that would likely be considered fair use.

That is why fair use is defined so openly and nebulously.  Every fair use case is a First Amendment case, and it's up to a judge to decide whether any specific instance of the use of copyrighted material is infringement or not.  In short, fair use is framed and defined as a defense against copyright, but it embodies a far more fundamental right -- the First Amendment right to express one's own ideas, even if they happen to involve the repeating and building upon other people's words.

[ Parent ]

Unfortunately, it may be too early to sue (none / 2) (#25)
by Highlander on Sun Feb 22, 2004 at 06:04:37 PM EST

Unfortunately, it may be too early to sue for your rights to copy material, since most material protected by CSS hasn't entered the public domain yet. I think you probably need to wait till there is material that has become public domain, and then you can sue for allowing use of DeCSS.

Moderation in moderation is a good thing.
It will never enter the public domain (none / 2) (#35)
by Zork the Almighty on Mon Feb 23, 2004 at 04:27:35 AM EST

I don't believe that any additional works will ever enter the public domain on account of their copyrights expiring. We've got another 14 years of the Sonny Bozo Extension Act before this issue comes up again. Does anybody here realistically think it won't happen again ?

[ Parent ]
Life + ? (none / 3) (#37)
by trezor on Mon Feb 23, 2004 at 05:51:36 AM EST

Before things are to enter the public domain, it's what, a period of merely life + 70 these days? And don't forget, corporations are free to extend the copyright as long as they see it fit.

What makes you even think there is such a thing as the public domain anymore?

In these times civil disobidience is the only way to ensure that any content get freed of the corporate claw.


--
Richard Dean Anderson porn? - Now spread the news

[ Parent ]
actually... (none / 1) (#66)
by Danse on Thu Feb 26, 2004 at 12:26:01 AM EST

I don't think any copyright has expired since 1998. That would be thanks to the retroactive extension that was purchased from our Congress in obvious violation of the Constitution. With enough money, anything is possible though.




An honest debate between Bush and Kerry
[ Parent ]
By then, CSS probably won't be in use... (none / 0) (#76)
by plentpakw on Fri Feb 27, 2004 at 12:27:14 AM EST

By the time CSSed material enters the public domain (if it ever does), CSS will probably have long been obsolete... we probably won't even be using DVD format anymore.

[ Parent ]
Charlie Chaplin (none / 0) (#77)
by pin0cchio on Sat Feb 28, 2004 at 09:28:46 PM EST

The DMCA's circumvention ban applies only to "works protected under this title", that is, copyrighted works. I thought some pre-1923 silent films starring Charlie Chaplin had entered the public domain in the United States. The video track from the main title of a sufficiently old Charlie Chaplin DVD title is in the public domain and therefore not "protected under this title." (Only the audio is copyrighted.) Would selling a device designed to decrypt a CSS-encrypted bitstream from a Chaplin DVD and demux out its video track count as selling a device with a substantial non-circumventing use?

In addition, the Eisner Company may have lost the copyright on "Steamboat Willie" and "Plane Crazy", two early animated sound films starring Mickey Mouse, because of a copyright notice that did not meet the old copyright law's standard.


lj65
[ Parent ]
Isn't CSS irrelevant, considering ... (none / 3) (#38)
by Mr.Surly on Mon Feb 23, 2004 at 10:34:21 AM EST

... I can copy a DVD pit-for-pit from the physical layer to another DVD, copying the encrypted data exactly?

At this point, CSS isn't even involved, and I've still made a perfect copy of the DVD.

But I suppose this counts as 'circumvention'.  Or does it? You still have to use CSS to access the data on the copy.  In any case, it doesn't matter, since the DMCA shouldn't prevent the use of 'anti-circumvention' devices that actually have legitimate uses.

And despite what others may say, I'd rather have backups of my legally bought DVDs, since the originals aren't exactly scratch-proof.

Just try ... (none / 2) (#39)
by cdguru on Mon Feb 23, 2004 at 10:55:50 AM EST

No "consumer" device will make a pit-for-pit copy. I do not believe even a $5000 "authoring" DVD recorder will do this.

This means that in order do this you need a DVD LBR (Laser Beam Recorder) or whatever they are called. This is the handy device that takes a DVD image file and makes the glass master. Then, you take that over to the stamping machine and make some DVDs.

Even when a dual-layer recorder is available later this year, you aren't going to be able to make an exact copy of a movie DVD. There is much that is on the disc that DVD-ROM drives do not read but has to be there for the disc to work, aside from the other problems.

[ Parent ]

Okay, but ... (none / 1) (#40)
by Mr.Surly on Mon Feb 23, 2004 at 10:59:23 AM EST

I'm not going to argue, 'cause I'm ignorant in these matters =)

But I do have an issue with this:

There is much that is on the disc that DVD-ROM drives do not read but has to be there for the disc to work

What sort of metaphysical things exist on a disc that are invisible to a reader that must be there for it to work?  Phlogiston?

[ Parent ]

My understanding (none / 1) (#48)
by gnarled on Mon Feb 23, 2004 at 11:32:41 PM EST

I'm pretty sure that the key used to decrypt the dvd material is printed on a part of the DVD that can be read by DVD players but consumer DVD writers physically cannot write on(Disclaimer: I'm not positive on this but remember hearing it). You can bit for bit the rest of it, but with out the key its no good. That is why to make a copy of a DVD one must first decrypt it then burn it unencrypted to a DVD.
--
I'm a firm believer in the philosophy of a ruling class. Especially since I rule. -Randal, Clerks
[ Parent ]
I don't get it... (none / 0) (#58)
by wakim1618 on Tue Feb 24, 2004 at 06:59:25 PM EST

What is preventing an ambitious enterpreneur from producing a DVD player/burner that will simply copy the entire DVD bit for bit?

As for intent, what is preventing him from marketing it for backup purposes only?


If I wanted dumb people to love me, I'd start a cult.
[ Parent ]

Patents (none / 1) (#61)
by FlipFlop on Tue Feb 24, 2004 at 08:10:05 PM EST

There are probaby dozens of patents on DVD drives. They would cover everything from the types of lasers that can read/write a DVD to the types of dyes you can use in writable media, to the control mechanism for aligning the laser (I'm speculating about all of these).

If you want to make a DVD player, you have to license the patents. A condition for licensing the patents is that you don't allow the drive to write to certain portions of the disk.

Even after the patents expire, the vendor would still likely face a lawsuit on the grounds that they are contributing to piracy. Sony won the Betamax case in a 5-4 ruling on the grounds that timeshifting was a significant non-infringing use. The movie studios would argue that the extra functionality has only one purpose, to infringe copyrights.

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

Prevention. (none / 0) (#69)
by squigly on Thu Feb 26, 2004 at 03:54:42 AM EST

What is preventing an ambitious enterpreneur from producing a DVD player/burner that will simply copy the entire DVD bit for bit?

I think the blank DVD already has the appropriate sector zeroed.  I guess you could sell the drive and blank media.  There may be patent issues to contend with.

As for intent, what is preventing him from marketing it for backup purposes only?

Surprising as it may seem, considering some opinions it comes out with, the legal system is allowed a certain amount of flexibility in interpreting the law.  While something may say it is intended for a legitimate use, if it is quite clear that it is used pretty much entirely for other purposes, it may be in breach of the law.  It would make more sense to sell it for recording your own copy protected DVDs.  

That said, there is more than adequate precedent for duplication devices being legal.  Photocopiers have been around for decades.

[ Parent ]

Mystery stuff on the disc (none / 1) (#54)
by cdguru on Tue Feb 24, 2004 at 04:18:03 PM EST

Well, you see a DVD isn't just a collection of sectors. There are several things like device control blocks, CSS information, the disc key, and such which isn't any part of the "data" on the disc.

Oh, sure, it takes up physical space, but it isn't addressable in the sense that other sectors are. You can access some of this information by asking specifically for it. But, there are still things on the disc, besides just CSS information, that a manufactured disc has and cannot be written to a recordable disc.

Optical media is completely different than a hard drive where there are sectors and little else.

[ Parent ]

the gotcha (none / 3) (#49)
by jms on Tue Feb 24, 2004 at 12:14:13 AM EST

> ... I can copy a DVD pit-for-pit from the physical layer to another DVD, copying the encrypted data exactly? The "gotcha" is that there is a special key field on each and every DVD. On prerecorded DVDs, that key field is set to the CSS key for the DVD. On recordable DVD media, that key field is permanently zeroed out. The DVD player reads that key and uses it as the basis to decode the rest of the disc. If you could record the key field, then you could do as you described -- copy the entire DVD bit for bit, and it would work correctly. But you can't, so even if you were to copy the entire DVD bit for bit, you would have an encrypted DVD, but the player wouldn't be able to play back the DVD because the unrecordable decryption key would be missing.

[ Parent ]
Buy another one! (none / 1) (#65)
by Trepalium on Wed Feb 25, 2004 at 01:04:15 PM EST

"If you buy a DVD you have a copy. If you want a backup copy you buy another one." says Jack Valenti. Yes, he's a jackass, but that's the mindset of these people. They honestly can't believe that you should have the right to make a backup for safekeeping purposes because all their customers are criminals, just waiting for the opportunity to rip them off, right?

[ Parent ]
I wouldn't have so much of a problem with this... (none / 2) (#68)
by squigly on Thu Feb 26, 2004 at 03:46:37 AM EST

For most people, buying a replacement isn't that great an issue.  The problem is, it may not be possible to get hold of another copy.  I remember spending months hunting for a Disney video that was out of production.  Perhaps what we need is some sort of obligation to publish - Something that I'm in favour of for a lot of reasons.

[ Parent ]
Piracy in South Africa (1.75 / 4) (#44)
by Vendor on Mon Feb 23, 2004 at 04:43:13 PM EST

Piracy in South Africa is at an all time high. The excuse that the pirate-goods buying public gives is that original DVDs and CDs are too expensive, with original new DVDs being around 299 Rand (US $30), and pirate DVDs being between 50 Rand (US $5) and 100 Rand (US $10).

.

Authorities argue that piracy costs the South African economy billions of Rand per year. But indeed, it's because of the poor economy that South Africans are unable to afford new DVDs and CDs. A truly vicious cycle.



What does this have to do with CSS? (none / 0) (#84)
by shurdeek on Thu Mar 04, 2004 at 05:53:43 PM EST

I don't know what relationship to CSS you are implying, but in case you want to say that if CSS was still secret, it would not be possible to copy DVDs, then you are dead wrong. It has been told like a gazillion times: CSS doesn't prevent copying, but playback. A "pirate" doesn't have to know CSS in order to make a pirated copy of the DVD.

Besides, CSS seems to be US-specialty. European DVDs (zone 2) for example, aren't encrypted.

MfG shurdeek

[ Parent ]

Court once again muddles over key question in DMCA case | 86 comments (82 topical, 4 editorial, 3 hidden)
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