001 I. DECSS IS OUTSIDE THE SCOPE OF THE STATUTE 002 003 The plaintiffs assert that DeCSS is a tool for "circumvention" that 004 gives them a cause of action under 17 U.S.C. 1201(a)(2)(B). While 005 it is undisputed that DeCSS descrambles the scrambled .vob files 006 found on a DVD, this alone does not constitute "circumvention". 007 Additionally, the Plaintiffs have failed to demonstrate the other 008 requirements found in (a)(2)(B): DeCSS has substantial commercially 009 significant purpose other than to circumvent, and DeCSS is not among 010 the categories of "black-box" that may be banned under the statue. 011 012 1. CIRCUMVENTION vs. ACCESS-WITH-AUTHORITY 013 014 Plaintiffs arguement that the DeCSS descrambler is circumvention 015 rests on a flawed reading of the statue. The studios claim DeCSS is 016 a circumvention devoce because it commits the act of access without 017 authorization because it does not use the descrambling technology 018 licenced by the DVD-CCA (hereafter the "MPAA authorization model"). 019 This model relies on a convoluted mis-reading of the statue and is 020 not supported by the Copyright Act. 021 022 The law supports a different authority model. It is undisputed that 023 there is no contract between the copyright holder studio and the 024 purchaser of a DVD. The doctrine of First Sale applies and holds 025 that all rights not specifically codified as exclusive rights in 17 026 U.S.C. 106 are transfered at the time of sale to the owner of the 027 copy. First sale is codified in the statue in 17 U.S.C. 109, and 028 109(c) specifically provides that the right to display the work is 029 so transfered. For brevity this will be called the "Consumer's 030 authorization model". 031 032 The implications of the Consumer's authorization model, once 033 accepted are simple, yet profound. Once the copyright owner 034 voluntarily parts with his rights of control associatied with 035 ownership of a copy by accepting the reward that the Copyright Act 036 assures him, the new owner of the DVD may display the work with the 037 non-retractable authority of the copyright holder to an audience in 038 the physical presense of the copy. Since display inherently 039 requires the act of access if the work is scrambled, the right of 040 access is part of the larger right to display. Thus when the owner 041 of the DVD uses DeCSS to descramble, he does so with the authority 042 of the copyright holder. As long as the copyright holder retains 043 the compensation associated with the contract of sale, his authority 044 is contractually obligated and any communications otherwise are but 045 laments to a deal done. 046 047 Having presented the correct model for authorization in the 048 Consumer's authorization model, due diligence requires a deeper 049 investigation of the MPAA authoriziation model to find it's 050 fallacious assumptions. The two models are clearly not compatible, 051 so if the statue requires one, it must logically follow that it 052 rejects the other. Additionally, the MPAA authorizaton model 053 requires certain evidence support (as opposed to post facto 054 assertion). This too, will be found lacking. After reviewing why the 055 statue and facts contradict the MPAA authorization model, 056 Constitutional considerations will futher show that the DMCA 057 cannot, as applied, support it either. 058 059 A. FACTUAL PROBLEMS 060 061 The factual problems with the MPAA authorizaton model are the 062 complete lack of evidence in the record to support it. While the 063 MPAA did provide witnesses who asserted it, nothing distiguishes 064 this testimony from revisionist interpretation of history. Perhaps 065 this is what the studios thought or perceived was occuring, but 066 this does not make it so. 067 068 A factual finding requires tangible evidence that at the time DVD's 069 were sold to the public that something tangible exist to provide 070 evidence that this was the authorization model. The DVD copyright 071 notice and related packaging fail to put such evidence into the 072 record. No consumer contract exists, by stipulation. The player 073 software licencing and packaging also fail to put such evidence into 074 the record. No DVD advertiseing or specifications available to the 075 purchaser are in the record showing that the MPAA so constrained 076 the user. In fact, testimony in the trial was not allowed on the 077 matter. In short, out of all the conceivable authorization models 078 the MPAA could have propose, not one piece of evidence exists to 079 single out the one they now claim was in effect as the real one. 080 081 B. CIRCULAR REASONING UNDER THE STATUTE 082 083 The reason for this failing is easy to see. The Plaintiffs 084 misunderstand the statute and believe that the descrambler licence 085 provided by the DVD-CCA embodies the authority of the copyright 086 holder. A consumer is authorized to descramble the DVD they bought 087 when they do so with a licenced player, they claim. "Two purchases 088 are required" there witnesses proclaim. 089 090 The Plaintiff's error is a misinterpretation of the type of "access" 091 that Congress has given copyright holders the exclusive ability to 092 authorize. Any common dictionary (eg Merrium-Webster) defines three 093 senses for the word "access". Access in common language is either a 094 right, an act, or a means. The Plaintiffs believe that Congress 095 gave them authorization for the means to access. This is simply 096 false. 097 098 As a close reading of the statue shows, Congress provided the 099 Copyright holder authority over granting the right to commit the 100 act of access to people. Only people have rights - programs do not. 101 It is nonsensical to speak of granting authority to the XingDVD 102 player. A program cannot have "authorization" any more than a brick 103 can. The "right to access" granted or withheld by the Copyright 104 holder can refer only to an attribute of a human being -- the person 105 doing the act of access. 106 107 The statute bears this out. While it is true that 1201(a)(2)(B) 108 prohibits trafficking in devices whose only commercially 109 significant purpose is circumvention of measures that effectively 110 control access to a work, this is not the same thing as granting 111 the Copyright holder authorization rights over descramblers. The 112 law bans the act (by a person) of trafficking devices only after a 113 finding that all commercially significant uses of the device are 114 circumvention. This clearly requires a determination of whether the 115 act of use is circumvention. 116 117 As defined in 1201(a)(3)(A), the use of a device is an act of 118 circumvention if it is the act of descrambling a work when such act 119 is done without the authority of the copyright holder. The 120 necessity of defining circumvention as applying to certain acts of 121 access is plain when one considers that 1201(a)(1) will ban such 122 acts directly and the definition in 1201(a)(3)(A) is shared among 123 (a)(1) and (a)(2). 124 125 With this established, it is clear that the DVD-CCA licence, which 126 grants a right to use and distribute certain technology to DVD 127 player manufacturuers does not have any legal significance 128 recognized by the statue with respect to the act of access for the 129 end-user, who is not a party to this contract. This licence 130 certainly does allow the appropriation of a trade secret under 131 suitable confidentiality as well as provides the licence to 132 distribute certain copyrighted code. No violation of these is 133 alleged in this case. It might even grant the player company the 134 right to commit the act of access. 135 136 To argue that the DVD owner is authorized depending on the 137 particular device used for access presupposes that the copyright 138 act allows the act to be legal based on the device, but in fact it 139 requires the reverse. Logic dictates that the authority to access 140 is an atomic right that cannot be conditioned on the device used. 141 One cannot coherently define authorized acts in terms of authorized 142 devices and authorized devices in terms of authorized acts. Such 143 circular reasoning is nonsensical and not among the admissible 144 authorization models allowed by the statute. Moreover, the end user 145 of the player program is put on notice by the End User Licence 146 Agreement that the player does NOT grant him access rights. (eg 147 XingDVD EULA). 148 149 C. ANTITRUST MISUSE OF INTELLECTUAL PROPERTY 150 151 In fact, there are other reasons besides logical consistancy to 152 believe that Congress would frown on authorizing the act of access 153 to a Copyrighted work based on the device used. These are found in 154 antitrust principles and a long history of jurisprudence stating 155 that in order to fulfill its Constitutional purpose, the monopoly 156 grant provided by laws is limited tightly to that which is the 157 actual intellectual property. 158 159 Plaintiffs witnesses admit and relish in the tying done between 160 movies and players. <> 161 Schumann (?) freely admits. The collective market power of the 162 movie studios in the DVD market is obvious and undisputed. Through 163 contractual arrangement mutually with the DVD- CCA, the studios have 164 formed a trust which seeks to force an unwanted licence on all 165 prospective members of the DVD player market. This is as obvious a 166 case of tying as one can imagine. The collective force of the trust 167 of all movie studios has subordinated an entirely new technology 168 market under the guise of access authorization. 169 170 "First, as to antitrust liability, case law supports the proposition 171 that a holder of a patent or copyright violates the antitrust laws 172 by 'concerted and contractual behavior that threatens competition.' 173 " Image Technical Services Inc v. Eastman Kodak Co, No. 96-15293, 174 (9th Cir. 8/26/97). 175 176 The problem becomes clear when we read the statute's requirement for 177 the authorization of "the" copyright owner. Setting aside the 178 "which came first the access or the device" question, if each 179 studio were to market it's access authority independently, no trust 180 would exist and there would not be a problem. However, through 181 collusion the Copyright Act is subverted. The MPAA authorization 182 model provides authority not from the copyright holder of the 183 individual movie, but rather from a single entity which speaks for 184 the entire trust of all movie studios. Copyright holders not acting 185 as part of a trust might disagree on whether and end user could 186 create unencrypted copies for certain purposes. If the MPAA model 187 does not create a trust, how can can authorization be coherently 188 defined when different copyright holders make different 189 determinations on authorization in a common protection scheme. 190 191 The industries' desire for standardization cannot serve as the 192 escape hatch here. The true intent of the DMCA was to allow First 193 Sale to be taken for the keys to encrypted works. These keys could 194 easily be placed in a variety of standardized players without the 195 need for a trust that would drive restrictive conditions and 196 expensive prices to all would be player developers. 197 198 It is commonplace for encryption algorithms to be openly 199 distribution and yet the keys they use to remain proprietary. In 200 fact, this is the prefered model for the field, because it is 201 widely acknowledged that trying to keep the alogorithm secret is 202 doomed to failure. so-called "security through obscurity" is a 203 "beginners mistake", in the words of the expert witnesses for the 204 defense. 205 206 While a violation of antitrust laws is sufficient, it is not 207 strictly necessary for a defense to an intellectual property 208 violation, as argued persuasively in Lasercomb v. Reynolds: 209 210
211 212 A patent or copyright is often regarded as a limited monopoly -- an 213 exception to the general public policy against restraints of trade. 214 Since antitrust law is the statutory embodiment of that public 215 policy, there is an understandable association of antitrust law with 216 the misuse defense. Certainly, an entity which uses its patent as 217 the means of violating antitrust law is subject to a misuse of 218 patent defense. However, Morton Salt held that it is not necessary 219 to prove an antitrust violation in order to successfully assert 220 patent misuse: 221 222 "It is unnecessary to decide whether respondent has violated the 223 Clayton Act, for we conclude that in any event the maintenance of 224 the present suit to restrain petitioner's manufacture or sale of the 225 alleged infringing machines is contrary to public policy and that 226 the district court rightly dismissed the complaint for want of 227 equity." 314 U.S. at 494. See also Hensley Equip. Co. v. Esco Corp., 228 383 F.2d 252, 261 & n. 19, amended on reh'g, 386 F.2d 442 (5th Cir. 229 1967); 8 Walker on Patents, at § 28:33. 230 231 So while it is true that the attempted use of a copyright to violate 232 antitrust law probably would give rise to a misuse of copyright 233 defense, the converse is not necessarily true -- a misuse need not 234 be a violation of antitrust law in order to comprise an equitable 235 defense to an infringement action. The question is not whether the 236 copyright is being used in a manner violative of antitrust law (such 237 as whether the licensing agreement is "reasonable"), but whether the 238 copyright is being used in a manner violative of the public policy 239 embodied in the grant of a copyright. 240 241
242 243 Morton Salt expressed the Supreme Court's view on misuse of patents, 244 which Lasercomb translated into copyrights. It is only since the 245 rise of copyrighted computer programs that misuse of copyright has 246 gotten attention. Still, Lasercomb's perspective has subsequently 247 been endorsed by the 5th Cirtuit as well, eg Alcatel USA v. DGI 248 Technologies, No. 97-11339, (5th Cir. 1999). When the Lasercomb 249 standard is take together with that of Morton Salt, a comprehensive 250 statement covering intellectual property can be formed: 251 252 The grant to the creator of the special privilege of a intellectual 253 property grant carries out a public policy adopted by the 254 Constitution and laws of the United States, "to promote the 255 Progress of Science and useful Arts, by securing for limited Times 256 to Authors and Inventors . . . the exclusive Right . . ." to their 257 original works and novel inventions. United States Constitution, 258 Art. I, § 8, cl. 8, . But the public policy which includes original 259 works and inventions within the granted monopoly excludes from it 260 all that is not embraced in the original expression or novel 261 invention. It equally forbids the use of the intellectual property 262 grant to secure an exclusive right or limited monopoly not granted 263 by the Copyright or Patent Office and which it is contrary to public 264 policy to grant. 265 266 Interestinly enough, the judicial origin of intellectual property 267 misuse is traced by James A.D. White in his article "Misuse or Fair 268 Use: That is the Software Copyright Question" Berkeley Technology 269 Law Journal 12-2, Fall 1997 to a Supreme Court case strikingly 270 similar to the one at hand. 271 272
273 274 The doctrine of intellectual property misuse first arose in the 275 early 1900s in conjunction with the use of patents. In the 1917 276 case of Motion Picture Patents v. Universal Film Mfg. Co. [243 U.S. 277 502 (1917)], the patentee licensed its patented movie projector on 278 the condition that the film used in the machine must be purchased 279 from the patentee (a type of tying arrangement). The Court found 280 that: 281 282 [S]uch a restriction is invalid because such a film is obviously not 283 any part of the invention of the patent in suit; because it is an 284 attempt, without statutory warrant, to continue the patent monopoly 285 in this particular character of film after it has expired, and 286 because to enforce it would be to create a monopoly in the 287 manufacture and use of moving picture films, wholly outside of the 288 patent in suit and of the patent law as we have interpreted it. 289 290 In short, the Court denied relief to the patentee because the 291 licensing restrictions attempted to extend the scope of the film 292 projector patent into the unpatented area of film. 293 294
295 296 The same logic applies to the studios use of CSS on movies. Were it 297 confined to assuring that the consumer purchased the descrambling 298 key before viewing the work, there might not be a problem. However, 299 just as in Motion Picture Patents, the intellectual property rights 300 to the work are tied not just to the key, but to full blown players 301 which implement additional technology that is not part of the 302 monopoly grant. Further this technology can only be obtained, 303 according to the MPAA, subject to the DVD-CCA licence which 304 contains anticompetitive terms that attempt to restrict end-users 305 from reverse engineering it and prevent public disclosure of the 306 ideas it contains. Both violates 17 USC 102(b) which fobids 307 copyright protection to the "ideas" or "methods of operation". 308 309 The reasoning from 1917 is timeless. Such a restriction is invalid 310 because such a player is obviously not any part of the creation of 311 the intellectual property in suit; because it is an attempt, 312 without statutory warrent, to continue the intellectual property 313 monopoly in this particular character of movies (DVD's) beyond the 314 scope and duration statutorily protected, and because to enforce it 315 would be to create a trust in the licencing and use of DVD players, 316 wholly outside of the intellectual property in suit and of the 317 intellectual property laws as the Supreme Court has interpreted 318 them. 319 320 If for no other reason, the DVD-CCA's player licencing must be 321 deemed a misuse of copyright because if allowed to stand, eternal 322 protection to any copyrighted works will be granted. Because works 323 share a common protection measure, if Plaintiffs claims are 324 granted, then as applied the Constitutional restriction to "limited 325 times" for intellectual property protection will have been broken. 326